Refund entitlement established for buyers in case of inordinate construction delays.

1. Heard Ms. Sumati Sharma, Advocate, for the complainant and Mr. Sumeer Sodhi,Advocate, for the opposite party.

2. Aforementioned complaint has been filed for directing the opposite party, (here in after referred to as the builder) (i) to return the money paid by the complainant, amounting to Rs.72,05,512 along with interest @18% per annum, (ii) to cancel "Allottee Arrangement Agreement" dated 26.10.2012, (iii) to pay Rs.50 lacs as compensation for mental agony and physical harassment (iv) to pay Rs.2 lacs as cost of the litigation and (v) any other relief which may be deemed fit and proper, in the facts of the case, be passed.

3. The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company, engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. In the year 2011, the builder propagated that they had licence for development in commercial plot No. CC - 001, admeasuring 6,18,952.75 square meters, at Sector - 52A & 32, NOIDA, Gautam Budh Nagar. The builder launched a project of Super Premium / Serviced Residences in the name of "Wave City Center". The complainants booked a residential flat, in this project on 30.9.2012 and deposited Rs.14,97,509. They were allotted Unit No. 1202 - H (area 2,066.03 sq.ft.), at 12th Floor, Tower 4, Block - 2 - D, Block name Trucia. Allottee Arrangement Agreement was executed on 26.10.2012. As per schedule - 1 of this agreement, payment plan was "construction linked payment plan". Entire sale price had to be paid in 17 instalments at different stages of the constructions. Basic sale price was Rs.14524190.90, service tax was Rs.5m11,629.15 and other charges was Rs.8,56,603. As per clause - 5.1 of the Arrangement, possession had to be delivered within 48 months with extended period of 6 months, from the date of execution of the Arrangement. As per statement of account as maintained by the builder, the complainant deposited Rs.14,97,509 on 30.9.2012, Rs.6,50,000 on 28.12.2012, Rs.8,97,509 on 5.1.2013, Rs.1446878 on 16.3.2013, Rs.9,85,277 on 2.1.2014, Rs.7,53,180 on 30.12.2014, Rs.17,385 on 23.3.2016, Rs.9,75,202 on 21.3.2016 and Rs.9,752 on 25.5.2016 (Total Rs.72,05,513). The complainants took loan of Rs.1,10,00,000 from HDFC bank, for paying instalments. But when the complainants visited the site, they found that the construction was not likely to be completed in the time schedule as given in Arrangement nor in near future, then he gave registered notice dated 23.5.2017, cancelling the Arrangement and requested to refund his money of Rs.72,05,513 with interest @18% per annum. But instead of returning the amount, the builder gave a vague reply dated 1.6.2017. Then this complaint was filed on 27.6.2017.

4. The builder contested the complaint and filed its written reply on 18.9.2017, in which, material facts have not been denied. It has been stated that the complainants invested money in real estate in order to earn profit. The market in real estate has gone down then, the complainants decided to withdraw from the Arrangement and return of his money along with interest. The complainants did not disclose their other properties. The complainants are not a consumer, within the meaning of Consumer Protection Act, 1986 , rather an investor and the complaint was not maintainable. Under Clause - 5.1 of the Arrangement, it was provided that the builder would endeavour to complete the construction within 48 months with extended period of 6 months from the date of the Arrangement, subject to force majeure conditions and timely payment of the instalments. After aforesaid period, the builder would be liable to pay del