JUSTICE DEEPA SHARMA (ORAL) THROUGH VIDEO CONFERENCING

             The present Complaint has been filed by the Complainants alleging deficiency in service on the part of the Opposite Party in providing the allotted unit to them in terms of the agreement entered into between them and the Opposite Party.

2.          The brief facts of the case are that the Complainants had booked a villa with the Opposite Party and entered into a Builder Buyer Agreement dated 22.12.2009.  Under that agreement, the Opposite Party had promised to hand over the allotted unit to the Complainants within three years from the date of execution of the said agreement.  The Opposite Party failed to honour their promise made in the said agreement and made no offer of possession of the unit to them till the year 2017 when they made an offer of villa no.6, S-5.3, Signature Villa 2.  The Opposite Party had made the offer without any approved plan and Completion Certificate.  Hence, the Complainants did not accept the offer of possession.  They have filed the present Complaint.

3.          In the Complaint, it is alleged that the Opposite Party had initially allotted the Villa No.31/240/Simplex/BR but later on despite seeking certain Addendum on the false promise of handing over the possession of the changed villa, the Opposite Party did not deliver the possession of the villa within stipulated period of three years from December 2009.  It is submitted that without consent of the Complainants, the villa had been changed again and an offer of possession of Villa No.6, S-5.3, Signature Villa 2 had been made.  It is submitted that the Opposite Party had also asked for certain additional charges towards holding charges, maintenance charges and restoration cost which again is contrary to the terms and conditions of the agreement.  On these submissions, the Complainants have prayed that the Opposite Party be directed to refund the deposited amount of ₹63,75,830/- along with appropriate interest and compensation.

4.          The Written Statement has been filed by the Opposite Party.  The only plea taken is that the Complainants are not consumers.  It is further contended in the Written Statement that Section 79 of Real Estate (Regulation and Development) Act, 2016 (RERA) bars the jurisdiction of this Commission.  It is further submitted that there is no deficiency in service on the part of the Opposite Party.  It is contended that the offer of possession was made but the Complainants have failed to accept the possession and therefore, it cannot be said that there was deficiency in service on the part of the Opposite Party.  It is submitted that the increase in the cost of the villa has been due to the increase in the area of the villa.  It is contended that the time was not the essence of the agreement.  It is further contended that the Complainants were the defaulter and the delay occurred is beyond the control of the Opposite Party.  It is submitted that there was no availability of steel/cement, another building material, water supply, electric power or slow down, strike, man power etc. and due to that reason, the delay had occurred.  There was an element of force majeure and there cannot be said that there was any deficiency in service.  It is prayed that the