Residential buyers are consumers; builders liable for delayed possession sans force majeure proof; refund with interest from deposit dates.

MEMBER ARGUED BY :-

Sh. Bhupinder Singh, Advocate for the complainants Sh. Vishal Singal, Advocate for the opposite parties PER RAJESH K. ARYA, MEMBER The grievance of the complainants in the instant complaint is that they booked Apartment/Unit No.A-904, Type 3 BHK (Large-1650 sq. ft.) on the 9th floor in the project “Sushma Grande NXT” situated at Village Gazipur, Zirakpur, District SAS Nagar, Punjab, for a total sale consideration of ₹67,39,500/- including GST and initially paid an amount of ₹10,85,700/- between 19.10.2023 and 01.11.2023 prior to execution of the Agreement to Sell dated 07.11.2023. Thereafter the remaining amount was arranged through a housing loan obtained from ICICI Bank on the assurance of the opposite parties that they would pay the interest on the said loan till delivery of possession; however, the opposite parties stopped paying the loan interest after 04.09.2024, issued a cheque of ₹41,200/- which was dishonoured. The opposite parties further failed to hand over possession of the said apartment along with basic amenities within the stipulated date i.e. 31.10.2024, despite repeated requests and emails by the complainants who had purchased the apartment for the residence of their aged parents, thereby causing financial loss, harassment and mental agony to the complainants.

2] The complainants have prayed that the opposite parties be directed to refund the entire amount deposited by them towards the apartment in question along with an amount equal to the price of the apartment for non-execution of the agreement as per its terms and conditions, together with interest @18% per annum from the respective dates of deposit till realization; further pay interest @18% per annum on the deposited amount for the period of delay; award compensation of ₹5,00,000/- on account of deficiency in service, unfair trade practice, mental agony and harassment suffered by them; impose punitive damages of ₹2,00,000/- upon the opposite parties for their illegal and negligent conduct and also award litigation expenses of ₹55,000/-.

3] The claim of the complainants has been contested by the opposite parties by filing joint reply wherein they took following preliminary objection and the pleas:-

(i) that the complainants are not consumers as defined under Section 2(7) of the Consumer Protection Act 2019 as they have purchased the flat as an investment with the intent of resale and profiting from the transaction, which qualifies as a commercial venture;

(ii) that this Commission cannot adjudicate the present complaint as vide Clause 33 of the Agreement for Sale both the parties have agreed that any dispute arising from or related to the agreement is to be resolved exclusively by the RERA-approved Adjudicating Officer;

(iii) that this Commission lacks pecuniary jurisdiction;

(iv) that this Commission lacks territorial jurisdiction to entertain and adjudicate the complaint as the unit in the project is located in District Mohali, Punjab and the complainants are themselves resident of Punjab;

(v) that complaint is barred by limitation;

(vi) that the complainants have engaged in perjury, prevarication and motivated falsehood, which warrants strict action by this Commission including imposition of punitive costs as the legal maxim jure naturae est neminem cum alterius detriment et injuria feiri locupletiorem underscores the principle that no one should be enriched at the expense of another;

(vii) that the construction and handover schedules were subject to agreed-upon force majeure provisions including unforeseen delays & Covid-19 pandemic and corresponding restrictions imposed by the authorities;

(viii) that as per RERA notified Agreement to Sale dated 07.11.2023, the possession of the unit was to be handed over to the complainants subject to force majeure conditions;

(ix) that the complainants opted for a construction linked plan and also executed a Tripartite Agreement with ICICI Bank, Annexure R-4;

(x) that the opposite parties fulfilled all its f