IMPORTANT POINT
Installment – Once the instalments were collected, the buyers are sought to be non-suited on a multitude of grounds, primarily the liability of the Government in not providing infrastructure and to claim immunity from any liability for deficiency in service and unfair trade practice on this pretext, apart from the fact that the agreement is now stated to be one of ‘sale’ and not ‘construction’, which is a ‘service’.

Order

This consumer complaint under section 21(a)(i) of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleges unfair trade practice and deficiency in service in delay in handing over possession of a flat booked by the complainants in a project promoted and executed by the opposite party within the promised time and seeking refund of the amount deposited with compensation and other costs.

2. The complainants state that they booked a flat with the opposite party in their project “Raheja Shilas” in Sector 109, Gurgaon, Haryana and were allotted Flat No. IF 14-02 admeasuring 2062.33 sq ft for a sale consideration of Rs 1,02,11,774/-. A Flat Buyer Agreement (FBA) was signed between the parties on 29.08.2011 and as per clause 4.2 possession was to be handed over within 30 months from the date of the FBA. Opposite party was liable to pay compensation @ Rs 7/- per sq ft of the super area per month for the period of delay. The penalty for delay in payment by the complainant was 18% on monthly compounded basis as per clause 3.15 Between 25.03.2011 and 04.02.2014 the complainant paid Rs 89,07,825/- in several instalments. Possession was not handed over after expiry of 30 months on 28.02.2014 which amounts to deficiency in service and unfair trade practice. Complainants state they are paying regular EMIs to opposite party no. 2 and despite lapse of over 6 years are without a house. Complainant relies upon this Commission’s judgment in A Malathi vs Raheja Developers Ltd., in CC No. 2014 of 2019 dated 14.06.2022.

3. Complainant prays for directions to opposite party to (i) refund Rs 89,07,825/- with 18% interest p.a. from the date of respective deposits till realization; (ii) pay Rs 10,00,000/- as compensation for mental harassment and agony; (iii) pay Rs 2,00,000/- as litigation expenses; and (iv) for any other orders deemed fit.

4. Resisting the complaint by way of a reply, opposite party denied all averments and raised preliminary objections that (i) the complainant is not a ‘consumer’ under section 2(1)(d) being an investor who has deliberately not taken possession of the flat; (ii) the FBA was signed without coercion and with consent and cannot be agitated; (iii) the period of 24 months for construction with 6 months of grace period from the date of execution was subject to the Government providing necessary infrastructure and its non-provisioning was a force majeure condition for which the opposite party was not liable; (iv) compensation of Rs 7/- per sq ft per month was the opposite party’s liability only after the provisioning of necessary infrastructure by the Government; (v) the period of handing over possession of the flat has to be calculated after deducting the period spent in provisioning of the necessary infrastructural facility by the Government and other force majeure reasons; (vi) there was no cause made out for unfair trade practice under section 2(1)(r); (vii) allegation of deficiency in service is only to seek refund; (viii) no service was rendered under section 2(1)(o) since the agreement is for sale of an apartment and not for rendering construction services; (ix) compensation under section 14(1)(d) of the Act is only payable if negligence is established which has not been done; (x) adjudication in the complaint can only be by a civil court; (xi) the complaint is barred by limitation under section 24A since the FBA is dated 29.08.2011 and the two year period expired on 28.08.2013; (xii) this Commission lacks pecuniary jurisdiction as interest and compensation cannot be clubbed and relief for refund is not tenable in view of Tripartite Agreement dated 29.11.2011.

5. On merits, it is contended that the complainants are not related and are not consumers. The agreements dated 29.08.2011 are admitted but it is denied that possession was to be handed over in 30 months since as per clause 4.2 as it was subject to availability of infrastructure being made available by the Government. It is stated that the allegation