ORDER

JUSTICE DEEPA SHARMA, PRESIDING MEMBER

1.       The brief facts of the case as narrated by the complainant in the complaint are that he booked a Unit No.12A-012 in the project “Digital Greens”, Sector 61, Gurgaon with super area of 138.45 sq. mtrs. @ Rs.8500/- per sq. ft along with a car parking space @ Rs.4,00,000/- for total consideration of Rs.1,33,01,354/- vide allotment letter dated 22.01.2009.  Buyer’s Agreement was entered on 30.11.2009 and the sale consideration was revised to Rs.1,30,67,380/-.  A supplementary agreement dated 01.12.2009 was also executed and rate was reduced from 8500/- to Rs.7225/- per sq. ft. The complainant continued to make the payment on different dates and had so far deposited a sum of Rs.1,01,75,709/-. As per the agreement, the agreed date of possession was 01.06.2011  i.e. the possession was to be handed over within 18 months from the date of execution of the agreement.  As per clause 15 (a) (i) of the said agreement, the Force Majeure period was 120 days and the offer of possession was not made even on expiry of 18 months and the Force Majeure date and the offer of possession was made after 6 years  i.e. 29.06.2017.  It has further been submitted that complainant is an NRI and he had booked the property in January 2009 to settle down in India and look for a means of livelihood within the next 2-3 years and since opposite party had failed to hand over the possession of the property as per the said agreement, the necessity of having the property for his residence has been changed and the plan of the complainant NRI to settle down in Indian has been grossly jeopardized and he does not require the property due to the abnormal delay of 6 years in offering the possession and hence claimed refund of the said deposited amount alongwith interest @ 12% p.a.  He also claimed Rs.10,00,000/- towards mental harassment and mental agony and Rs.1,00,000/- towards legal charges.

2.       The claim is contested by the opposite party. It is contended that complainant is not a consumer since he had got the property for investment purposes with plan to sell it in future and he never had any intention to settle down.  He never had any complaint with the opposite party till the offer of possession was made on 29.06.2017.  The complaint has also been filed with undue delay as the cause of action arose from the date 01.06.2011 which was the due date of delivery.  It is also contended that as per clause 17 (a) of Buyer’s agreement, complainant is entitled to the interest @ 9% p.a. for the delayed period.  It is further contended that complainant has been chronic defaulter in payment of the instalment.  It is further contended that since offer of possession has been made, no cause of action survives in favour of the complainant and complaint is liable to be dismissed on this ground alone.

3.       Parties have led their evidences.  Parties have also furnished their written synopsises.

4.       I  have heard the arguments and perused the relevant record.  Undisputed facts are that opposite party had started a project ‘Digital Greens’ in Sector-61, Gurgaon, Haryana and unit no. 12A-012 was allotted to the complainant vide allotment letter dated 22.01.2009.  Buyer’s Agreement was executed on 30.11.2009.  Supplementary Agreement was also executed between the parties on 01.12.2009 revising the payment schedule.  As per this agreement, under clause 15 (a) (i), the possession was to be handed over within 18 months from the date of execution and subject to  Force Majeure condition of 120 days grace period which was agreed upon between the parties.   Agreed date of possession was, therefore, 01.06.2011 and adding the grace period of 120 days, it comes to 01.10.2011. Meanwhile, vide letter dated 14.04.2010, pursuant to execution of Buyer’s Agreement plus Supplementary Agreement, unit no.12A-012 was relocated to unit no.06 yars-012 in Tower-B on 6^th Floor for consideration of Rs.1,12,51,023/-.  It is also an admitted fact that of