ORDER

PER MR SUBHASH CHANDRA, MEMBER

            The present Consumer Complaint has been filed under Section 12 (1) (a) read with Section 21 (a) (i) of the Consumer Protection Act, 1986 by the complainants against the Opposite Party viz., Ireo Pvt. Ltd., alleging unfair trade practices and deficient services rendered in respect of a group housing project of the Opposite Party called ‘Skyon’ located at Sector 60, Gurgaon, Haryana.

2.     The facts leading to the complaint are that the Complainants had booked a residential unit viz.  Apartment no. D – 0703, 7^th Floor, Tower D, ‘Skyon’, Sector 60, Gurgaon, Haryana in the said project being developed by the Opposite Party on 26.06.2011 by paying a booking amount of Rs.15,22,316/- to the Opposite Party. On 11.07.2011, the Opposite Party issued an allotment offer letter and three months later executed the ‘Apartment Buyers Agreement’ in respect of the said apartment.

3.      Complainants have averred that as per the Apartment Buyer’s Agreement, the Opposite Party agreed to deliver the possession of the apartment in 42 months, i.e., by December 2014 with a grace period of 180 days after expiry of the commitment period, i.e., by 17.11.2015. However, despite the payment of 100% of the sale consideration by the Complainant to the Opposite Party, i.e., Rs.1,76,71,537/- and the lapse of 23 months from the expiry of the 42 months committed, possession has not been handed over by the Opposite Party. Aggrieved, the Complainants are before this Commission with the prayer to:

4.     The Opposite Party has resisted these claims. Several contentions have been raised. Learned counsel appearing on behalf of the Opposite Party, however, admitted that the Complainant had booked the said flat and an allotment offer letter was issued. It was also admitted that the Apartment Buyer’s Agreement was executed on 17.10.2011. However, there is no deficiency in service.  As per clause 13.3 of the Buyer’s Agreement, it is agreed by the Parties that 42 months will commence from the date of approval of building plans and a six month grace period (180 days) will be allowed after this period. Based on the Occupation Certificate dated 26.08.2016, the notice of possession for the apartment has been issued on 07.09.2016. Accordingly, the Opposite Party is ready to execute the Conveyance Deed subject to payment of all dues as per the Apartment Buyer’s Agreement. The Opposite Party has also contended that the Complainant is bound by the terms of the Agreement per which possession was promised to allottees within 42 months from the date of approval of building plans and/ or fulfillment of conditions thereunder with a grace period of six months as indicated in the booking application (clause 37). As the building plan was approved on 27.09.2011 with conditions including the Fire NOC which was obtained on 25.09.2013, the period of 42 months and six months of grace would expire on 24.09.2017. Therefore, the present complaint is premature and without jurisdiction under the Consumer Protection Act, 1986 as it seeks to amend the agreement between the parties. There is also no unfair trade practice as there has not been any misrepresentation in promoting provision of service. As there is no negligence on part of the Opposite Party, compensation under Section 14 (1) (d) cannot be claimed. Complainants are also not consumers under Section 2 (1) (d) as they are residents of ‘Skyon’ and have invested in a flat in Gurgaon only for commercial gains.

5.     Parties filed their arguments by way of written submissions. We have also heard the learned counsels for the parties and carefully perused the records.

6.     It was contended on behalf of the Complainants that they booked the apartment in the project promoted by the Opposite Party on the assurance that it would be handed over within 42 months, i.e., by December 2014. On being issued the Allotment Offer Letter on 11.07.2011 they came to know that cancellation of the booking would entail f