Absence of a possession date in a property purchase agreement constitutes deficiency in service and unfair trade practice under the Consumer Protection Act.

For the Appellant Ms Minu Mahajan, Advocate

For the Respondent Mr Nikhil Thakur, Proxy Counsel for

Ms Kanika Agnihotri, Advocate

ORDER

PER MR SUBHASH CHANDRA

1. This Appeal under Section 19 and 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is directed against the order dated 20.07.2017 of the State Consumer Dispute Redressal Commission, Haryana, Panchkula (in short, ‘State Commission’) in Complaint Case No. 329 of 2017 disallowing the complaint as being premature.

2. Briefly stated, the relevant facts of the case are that the appellant had entered into a purchase agreement with the original buyer of Unit No. T-42 (Duplex), 4^th Floor, Tuscan City, Kundli, District Sonipat being developed and constructed by the respondent for a sale consideration of Rs 32,50,003.21. He had paid Rs 16,77,870/- to the original allottee and a Transfer Certificate was issued. The appellant and the respondent entered into an independent floor buyers agreement for the purchase of an independent floor with the respondent on 24.05.2014 (in short, the “Agreement”) as per which possession had been promised within 2 years. However, as no construction had commenced at site by the respondent, appellant had approached the State Commission through a consumer complaint (No. 329 of 2017) on 25.05.2017 seeking refund of the amount of Rs 16,77,870 with interest @ 24% p.a. and compensation of Rs 5,00,000/- for harassment and mental agony, Rs 5,00,000/- towards rent paid and Rs 55,000/- for litigation expenses.

3. The complaint was disposed of by the State Commission after hearing the appellant vide the impugned order wherein it was held that:

3. Learned counsel for the complainant vehemently argued that he purchased this unit from first allottee and paid Rs 16,77,870/- to him. O.P. has not raised any construction and be directed to refund the amount as mentioned above.

4. This argument is of no avail. The counsel for the complainant has failed to show date by which possession was to be delivered. When no such date has expired how it can be presumed that there is deficiency in service on the part of O. P. No cause of action has accrued as yet.

5. In view of the above discussion it is clear that complaint is premature and is not maintainable at this stage and is hereby dismissed as such. However, complainant will be at liberty to file fresh complaint as and when cause of action accrues.

4. Aggrieved by this order, the appellant is before us. We have heard the Learned Counsel for both the parties and perused the record carefully.

5. On behalf of the appellant it was contended that he had entered into an Agreement with one Gurbachan Singh who had booked the flat in question with the respondent for the purchase of the said flat and respondent had issued a transfer certificate in his name on 19.10.2011 confirming the transfer and crediting the payment of Rs 16,77,870/- in the appellant’s account. A Floor Buyer’s Agreement (FBA) was executed between the appellant and respondents on 24.05.2014 indicating the sale consideration as Rs 32,50,003.21. According to the appellant, the respondent promised to give possession of the unit within two years complete in all respects and the appellant agreed to deposit future instalments at the stage of construction to be completed up to 60%. According to the appellant it was agreed that the respondent would be liable to refund the amount along with interest at 24% p.a. calculated from the respective dates of deposit, in case possession was not handed over within two years. Despite the appellant approaching the respondent several times, no construction had commenced on site and was not likely to be commenced at any time in the near future. Alleging deficiency in service, the appellant approached the State Commission after a legal notice seeking refund of Rs 16,77,870/- with interest at 24% p.a. and other compensatio