Consumer complaints must substantiate claims of excess payments and delays with evidence and cannot succeed without demonstrating a breach of service.

1. This complaint has been filed as against the opposite party, under S.17 of the Consumer Protection Act, 1986 to direct the opposite party to pay:
(a) A sum of Rs.17,24,818 towards refund of excess amount with interest @ 24% p.a.;
(b) A sum of Rs.12,96,000 towards compensation for delay in delivering possession with interest @ 24% p.a.;
(c) A sum of Rs.5,00,000 for mental agony, deficiency in service and unfair trade practice; and
(d) The Costs.

2. It is the case of the Complainants that they entered into an Agreement for purchase of a residential apartment bearing Door No. 1, 19th floor, Tower No. 7, with a built up area of 1690 sq.ft. together with UDS 674.13 sq.ft of land situated at Garden City DLF, OMR Thazhambur Village, Tiruporur Taluk, Kancheepuram District. The cost of the apartment was Rs.63,96,960. The complainants availed home loan from HDFC Ltd., for purchasing the apartment and paid a sum of Rs.61,85,879 on 16.12.2010. The undivided share of land was registered only on 28.5.2014 vide Doc. No. 7515/2014, SRO Tiruporur. Though the cost was fixed as Rs.63,96,960, the opposite party had illegally collected a sum of Rs.81,21,378 which is over and above the agreed consideration, which the complainants were coerced to pay for getting possession. Thus, they have collected a sum of Rs.17,24,418 in excess. Though possession should have been given within 27 months from the date of agreement namely, 14.8.2011, actual possession was delivered only on 14.3.2014. There was an inordinate delay in handing over possession of the flat. Under such a situation, the opposite party sent an email dated 5.12.2013 demanding additional payment of Rs.1,18,517.71 for giving possession of the apartment. The complainants were constrained to pay the said amount and on 16.12.2013 they paid the said amount vide Cheque No. 000315 drawn on Lakshmi Vilas Bank, Thambuchetty Street Branch, Chennai dated 14.12.2013, as otherwise possession of the apartment would not be given. Since the opposite party had collected excess payment and there was a delay in delivery of the flat, the complainant had sent a legal notice through their Counsel on 19.12.2014 to the opposite party, which was duly received and acknowledged by the opposite party on 22.12.2014. But the opposite party neither complied with the demand nor have chosen to send a reply. Hence, the complainants have come forward to file the present complainant for the above reliefs.

3. Resisting the complainant the opposite party has filed a written version stating that the complainants have not made out a case to be entertained by this Commission. In fact, in the Apartment Buyers' Agreement dated 14.5.2009, Clause 54 provides for resolution of any disputes between the parties through the process of Arbitration. In view of the arbitration clause the consumer commission cannot entertain the present complaint. Furthermore, the complainant does not fall under S.2(c) of the Consumer Protection Act, 1986 as there is no deficiency of service. Actually the complainants booked Apartment No. 1 on 19th Floor in Tower No. 7 with an estimated super area of 2012 sq.ft., at a basic sale price of Rs.2,800 per sq.ft. together with Floor Raise charges of Rs.300 per floor after 3rd floor, taxes and other charges and deposits, which are subject to the actual constructed super area upon completion of the apartment. The complainants paid a booking amount of Rs.5,00,000 along with the application dated 31.3.2008. Thereafter, the complainant executed Apartment Buyers Agreement on 14.5.2009 for purchase of the aforesaid apartment on the terms and conditions mentioned therein. As per Clause 1.6 of the Apartment Buyers Agreement dated 14.5.2009, the complainants acknowledged that the total price