JUDGMENT

The Complainants, initially filed the complaint no. 211/2018 before the District Consumer Forum (South West District). Later on, the complaint was transferred to this Commission by Ld District Forum vide order dated 12.07.2018 for want of pecuniary jurisdiction. Thereafter, the present complaint was filed before this Commission on 21.07.2018.

2. Brief facts of the case are that the Complainants who are husband and wife had jointly booked two BHK flat in the Group Housing project of the Opposite Party, namely, ‘Garden City’ at Hapur, Uttar Pradesh. They paid an amount of Rs.1,00,000/- to the Opposite Party vide cheque bearing no. 375333 dated 15.02.2009 drawn on UCO Bank, towards the booking amount. Thereafter, the Opposite Party vide Allotment Letter dated 22.05.2010 allotted flat no. B7-306, third floor, admeasuring 1050 sq. ft. in the said project, to the Complainants. As per Allotment Letter, the basic sale price of the flat was Rs.16,70,000/-

3. It is the case of the Complainants that a written agreement (Annexure-A3) was executed between them and the Opposite Party, according to which, the Opposite Party had agreed to handover the possession of flat within 24 months from C-917/2018 the date of booking. In compliance of agreement, they had paid a total sum of Rs.11,80,000/- to the Opposite Party within the seven months of booking.

4. It is the further case of Complainants that after paying the substantial amount of Rs.11,80,000/- to the Opposite Party, they along with family members visited the project site, but were shocked to see that no construction work was going on at the site. Thereafter, on the proposal of Opposite Party, they agreed to take the possession of another flat at Rudrapur, on the same price, which had already been deposited with the Opposite Party. But, when they visited the site at Rudrapur, they found that the construction of flat was not complete and flat was not in a condition to take possession of same. Lastly, waiting for nine years for their dream home, they wrote a letter dated 09.09.2017 to the Opposite Party seeking cancellation of booking and refund of their money. But, the Opposite Party did not reply to the same. Thereafter, the Complainants issued legal notice dated 23.02.2018 upon the Opposite Party, but was of no avail.

5. Thus, the Complainants were left with no other option but to file the complaint against the Opposite Party before the District Consumer Forum (South West District), which was withdrawn by them on 12.07.2018 on account of pecuniary jurisdiction.

6. After the complaint was filed before this Commission, the notice of the complaint was issued to the Opposite Party on 03.08.2018.

7. On 29.05.2019, the Opposite Party filed the written statement which was beyond the statutory period.

8. The delay in filing the written statement was condoned subject to costs of Rs.3,000/- by Ld Predecessor vide order dated 29.05.2019.

9. In the written statement, the Opposite Party contended that the Complainants are not ‘Consumers’ as they had booked the said flat for commercial purpose. They are residents of Greater Noida, U.P. and the property in question is situated at Rudrapur, Uttarakhand. The Opposite Party further contended that the present complaint does not fall within the pecuniary jurisdiction of this Commission. The Opposite Party further stated that no time for handing over the possession of flat was stipulated as time was not the essence of the Buyer’s Agreement. Even if, it is assumed that the possession of flat was to be handed over within 24 months of booking, the possession of flat should have been handed over by 16.02.2011 as the flat was booked on 16.02.2009 and the present complaint is filed in the year 2018. Thus, the complaint is barred by limitation. The Opposite Party further contended that the complaint is not maintainable as there was an arbitration clause in the agreement. The Opposite Party further stated that the construction of the project was delayed du