1. This complaint has been filed before this Commission by Sh. Sandeep Sarin resident of Gurgaon, for short Complainant, under Section 17 of the Consumer Protection Act 1986, the Act, against the M/s Clarion Properties Limited, hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs they having not handed over the possession of the flat booked by him within the time as agreed to, despite the payment as per schedule having been made and praying for the relief as under:-
It is, therefore, prayed that this Hon’ble Commission may graciously be pleased to:-
a. Direct the OP to reconcile its demands raised by it vide demand letter dated 31.10.2011 in terms of the Buyer’s Agreement dated 16.04.2005 and to withdraw all such demands raised over and above and/or beyond the purview of the Buyer’s Agreement dated 16.04.2005 or/and which are unjustified and not binding upon the complainant in view of the facts and circumstances of the matter.
b. Direct OP to accept the balance payment arrived after such reconciliation, from the complainant in terms of the Buyer’s Agreement dated 16.04.2005 and handover immediate possession of apartment/residential unit 903, Tower C4, situated in group housing “legend”, finished in all respects and equipped with all facilities/fixtures/provisions as provided in Buyer’s Agreement dated 16.04.2005.
c. Direct the Op to pay to the complainant a sum of Rs. 14,75,000/- paid by the compliant as rent from the period May 2009 to August, 2014 and to further pay the complaint an amount @ Rs. 25,000/- per month towards rent till the possession of the apartment is handed over to the complainant.
d. Direct OP to pay a sum of Rs. 5,00,000/- towards compensation for the harassment, torture, agony and loss of enjoyment of property suffered by the complainant.
e. Direct OP to pay a sum of Rs. 55,000/- towards litigation charges.
f. Any other order/relief in favour of the complainant and against the OP.
2. Facts of the case necessary for the adjudication of the complaint are these.
3. The complainant had booked the unit no. 903, Tower C4 having a built up area of 1843 sq. ft. comprising of balcony, common area measuring 460 sq. ft. one covered car parking and an open car parking in the project of OP “LEGEND” at Secto-57, Gurgaon, which unit at that time had already been sold and allotted by the OP to M/s Golden Educational 7 Welfare Trust, BP-13, Shalimar Bagh, Delhi in April 2005 vide Buyer’s Agreement dated 16.04.2005. Complainant’s name was incorporated in the Buyer’s Agreement. The project was scheduled to start in the year 2005 and the possession of the unit was proposed to be handed over within a period of three years i.e.by 2008. The complaint tied up with the ICICI Bank and a loan of Rs. 53.25 lakhs was sanctioned to the complainant for purchase of the aforesaid unit by the said bank and as per the terms and conditions of the loan agreement an amount of Rs. 14,23,977/- was paid by the Bank directly to the M/s Golden Educational Welfare Trust, BP-13, Shalimar Bagh, Delhi. Complainant paid a total sum of Rs. 42,92,908/- to the OP as confirmed by the OP in its letter dated 4th July 2008 issued to the complainant. But the OP failed to complete the project within the time agreed to rendering itself liable to pay penal amount @ Rs. 5 per sq. ft. per month to the complainant w.e.f. May 2008.
4. After a gap of almost three years of receiving last payment from complainant, OP issued a demand letter to the complainant asking him to make a payment of Rs. 5,05,048/- without clarifying as to when the possession/allotment of the unit would be done. Allotment cum demand letter dated 31.102.2011 was issued to the complainant by the OP raising a very steep and unexplained demand upon the complainant for payment of Rs. 28,21,018/- under various alleged heads, most of which were non-existent, non-contractual as the same had never been part of the Buyers Agreement dated 16.04.2005; deducting only a sum of Rs. 35,435/- on account of discount for delay in construction though a sum of Rs. 4,73,345/- (calculated at the rate of Rs. 5 per sq. ft. for a total area of 2309 sq. ft. for 41 months from June 2008 to October 2011) had fallen due and payable by the OP to the complainant for its failure to complete the project and deliver possession of the apartment on or before 16.04.2008.
5. The complainant had thereafter issued a legal notice to the OP requiring them to:-
Reconcile your demand notice sent by you as Annexure “A” to my client against the Heads:
a. Club membership charges of Rs. 44,120/-
b. Contingency/sinking fund deposit of Rs. 12,750/-
c. Electrical charges of Rs. 2,81,265/-
d. Interest on delayed payment of Rs. 1,97,260/-
e. BOCW Welfare Cess of Rs. 30,600/-
f. One year advance maintenance charges of Rs. 84,380/- (in view that you are demanding a sum of Rs. 1,27,500/- against maintenance security and this part of advance maintenance charges never discussed or consented by my client).
But the legal notice evoking no response, this complaint has been filed for the redressal of his grievances.
6. OPs were noticed and in response thereto they have filed their written statement resisting the complaint both on technical ground as also on merit stating, that the complainant having not transacted for residential purpose is not a consumer. Secondly the complainant seeking a direction of specific performance of the agreement dated 16.04.2005 cannot do so through the consumer forum. Thirdly as per agreement the matter is to be referred to the arbitration. Fourth this Commission, the subject unit being at Gurgaon, lacks the territorial jurisdiction to hear and to dispose of this case. Fifth, the complainant has been a defaulter in making the payment and thus he cannot agitate deficiency on their part. Sixth the construction of the project has not been delayed and has progressed according to schedule. In fact, the completion of the tower, in accordance with the terms of the agreement, stood completed by April 2009 and the same was duly informed to the complainant vide letter dated 20.04.2009. therefore, as per the clause 13 of the agreement, there is no default on the part of the OPs as the covenant to complete construction within 36 months of the agreement stood satisfied, given that the construction of the tower had commenced on 21.04.2006.
7. The complainant has filed rejoinder rebutting the contentions raised by the OPs in their written statement/reply and reiterating the averments contained in the complaint. Evidence by way of affidavit has been filed by both sides. Written arguments are also on record.
8. This matter was listed before this Commission for final hearing on 11.03.2020 when the counsel for the complainant appeared and advanced her arguments in support of her pleadings and for prayer made in the complaint. OPs concluded their arguments on 16.03.2020. Infact they were allowed time to do so till then. I have perused the records of the case and given a thoughtful consideration to the subject matter.
9. In the first instance I may advert to the objections of the OP. Their first objection that the transaction in the subject matter having been done for commercial purpose the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act is outrightly rejected for want of cogent evidence in support thereof. The next allegation that the complaint is not maintainable on the ground that the complainant has couched the relief of specific performance as a consumer complaint is not sustainable as the issue in the subject matter is of housing construction which subject matter is covered under the definition of service by virtue of the amendment of the Act on 18.06.1993. Their third objection that the matter was first required to be referred to the Arbitrator can also not be accepted relying on the judgement of the Hon’ble NCDRC in the matter of Aftab Singh and ors versus EMAAR MGF Land Limited and anr as reported in III  CPJ 270 (NC) holding that an arbitration clause in the agreement between the complainant and the builder cannot circumscribe the jurisdiction of the Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act. Their next objection that this Commission lacks the territorial jurisdiction to hear and to dispose of the case cannot be accepted keeping in view the provisions of Section 17(2)(b) which says that the complaint can be filed at a place where the OP resides or works for gain and the OP in the given case works from Delhi. Further as regards the allegation that the complainant was defaulter reference is made to the orders of the Hon’ble NCDRC in the matter of Ritu Hasiya and anr. Versus Ireo Grace Realtech Pvt. Ltd. CC-525/2015 holding as under:-
In my opinion, since the OPs were already in default as far as the offer of possession was concerned, when the 5th, 6th, 7th and 8th instalments were demanded, the complainants were under no obligations to pay the said instalments. As far as the default in payment of the 4th instalment by the complainants in CC No. 1999-2016 and CC No. 2000-2016 is concerned, it would be seen that the said instalment was raised at the stage of casting of roof slab of the lower basement. The demand was raised about two weeks before the last date for offering possession of the flats to the said complainants. Since the construction was still at the stageof casting roof slab of the lower basement at that time, the complainants knew that even if they pay the 4th instalment, it was impossible for the OPs to deliver possession of the apartments to them by the last date stipulated in this regard i.e. 23.01.2017 or within six months thereafter, i.e. 23.07.2017 even if the benefit of the grace period was given to them. When a flat buyer who is saddled with a demand applicable at the stage when the construction is at a very initial stage and the demand is raised just two weeks before the last date for offer of possession, he is not expected to sink more money with the builder despite knowing that the builder will not be able to honour his contractual obligation even if the benefit of a grace period of six months which was otherwise available only in case of unforeseen circumstances, is given to him. Therefore, even the complainants in CC No. 1999/2016 and CC No. 2000/2016 cannot be said to be defaulters, in the sense that they would lose their legal right to claim refund of the amount paid by them and the compensation for the defect/deficiencies on the part of the builder in rendering services to them.
10. Finally while disputing and denying the averments made in the complaint, the OPs have submitted that their exists no deficiency on their part and accordingly have prayed for dismissal of the complaint.
11. The argument of the complainant that the OPs have delayed construction of the project is borne out from the records and to this effect no cogent or tangible evidence has been led by the OPs.
12. Short question for adjudication in this complaint is whether t
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he complainant is entitled for the relief as prayed for in the facts and circumstances of the case when admittedly the OPs for the default done by the complainant have cancelled the allotment as conveyed vide their letter dated 01.06.2013. Having bestowed my consideration to the facts at hand I am of the considered opinion that the complaint cannot be accepted, the complainant having been defaulter 13. Having arrived at the said conclusion, the point for consideration is as what orders can be passed in the given case. 14. The cancellation of the unit having been done by the OPs possession thereof is not possible, the ld. Counsel for the complainant pressed for the refund of the deposited amount. The ld. Counsel for the OP has agreed to refund the deposited amount without interest keeping in view the fact that they have already cancelled the allotment on the ground that the complainant was defaulter. Accordingly, it is ordered that the amount deposited be refunded with compensation of Rs. 20,000/- which would include litigation cost also. 15. Ordered accordingly. 16. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.