ORDER

PER MR SUBHASH CHANDRA, MEMBER

        This complaint has been filed under section 12(1)(A) read with Section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in services and unfair trade practice in respect of the apartment booked by the complainants with the opposite party.

2.     In brief, the facts of the case are that the complainants had booked a residential flat in the project ‘Palm Gardens’, Sector 83, Gurgaon, Haryana being developed by the opposite party by way of transfer letter endorsing a booking originally done in the name of one Mr Rajesh Mayor vide nomination letter dated 01.09.2014 who had booked the flat on 31.10.2011 and was provisionally allotted unit number PGN-12-0504, 5^th Floor, Tower 12  admeasuring 1720 sq ft for a sale consideration of Rs 90,00,341/-. The present complainant thus stepped into the shoes of the original allottee by virtue of the transfer letter endorsed by the opposite party on 01.09.2014. The Builder Buyer’s Agreement (in short, BBA) signed between the original allottee and the opposite party on 17.02.2012 promised possession after 36 months, with a grace period of 3 months. The BBA was endorsed in the name of the complainant on 01.09.2014 on payment of Rs 22,45,437/- to opposite party. However, possession promised by February, 2016 has not been done despite payment of Rs 85,40,064/- by the complainants as on the date of filing of this complaint.

3.     Alleging failure to hand over possession of the flat as promised and non-acquisition of the green area for which preferred location charges (PLC) was collected, the complainants are before us with the following prayer:

4.     The opposite party has resisted the complaint by way of reply. The averments of the complainants have been denied and it has been contended that the complainants are not entitled to claim compensation being transferees; complainants are not ‘consumers’ within the definition of section 2(1)(d)(ii) of the Act as they have invested for speculative purposes; this Commission lacks jurisdiction in view of clause 32 of the ABA providing for arbitration and that there has been no deficiency in service as time was not of the essence in the Agreement for delivery of possession. It is also contended that the Apex Court has held that compensation can be awarded by consumer fora only if negligence of opposite party is proved; that complainants are defaulters in payments and that the complaint is barred by limitation under section 24A of the Act.

5.     Parties led their evidences and filed their written statements. We have heard the learned counsels for the parties and perused the records carefully. Admittedly, there has been a delay in the handing over the subject flat. The opposite party has not denied the receipt of Rs. 85,40,064/-  towards the sale consideration, but has denied making false or misleading promises and averred that the sector road was not its responsibility but that of Haryana Urban Development Authority (HUDA). Reasons for the delay in completing the project and obtaining an occupation certificate advanced by the opposite party are that there were contractual issues with M/s IL&FS the contractors and that this constituted a force majeure clause. An offer of possession dated 24.10.2019 has now been sent to the complainants.

6.     Opposite party has relied upon the judgement of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt Ltd Vs. Abhishek Khanna & Ors 2021 SCC OnLine SC 14 that since possession is offered the complainant is under obligation to accept possession. He has also relied upon judgments of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt Ltd Vs. D.S. Dhanda II (2019) CPJ 117 (SC) that when interest is awarded by way of damages, awarding additional compensation is unjustified and Laureate Buildwell Pvt Ltd Vs. Charanjeet Singh V (2021) SLT 10 that in the case of a subsequent purchaser of a flat, the builder’s obligation applies from the date of transfer.

7.