GAURAV AGARWAL Vs. IMPERIA STRUCTURES LTD.
LAWS(NCD)-2020-1-29
NCDRC
Decided on January 07,2020

GAURAV AGARWAL Appellant
VERSUS
Imperia Structures Ltd. Respondents




JUDGEMENT

V.K.JAIN,J. - (1.) The complainants who are husband and wife booked a residential flat with the OP in a project namely "Esfera"? who the OP was to develop in Sector-37-C of Gurgaon. On allotment of a residential flat in the aforesaid project to them, they executed an agreement with the OP on 06.09.2013 incorporating their respective obligations in respect of the said allotment. As per Clause-9.3 of the agreement, the construction was to be completed within a period of 3 - 1/2 years unless there was delay or failure due to reasons mentioned in Clause-11.1, 11.2, 11.3 and Clause-41 of the agreement. The sale price of the apartment was agreed at Rs.61,97,625/-. The grievance of the complainants is that the possession was not offered to them and the construction was not completed despite the booking having been made by way back 08.09.2011 and the time period for delivery of the possession having expired on 06.03.2017. The complainants are, therefore, before this Commission seeking refund of the amount which they paid to the OP alongwith compensation etc. The complaint has been instituted through the authorised representative of the complainants Mr.Nitin Saxena who claims to be the President of an organisation namely All India Consumer Education Society (Regd.).
(2.) The consumer complaint is resisted by the OP on several grounds. It is, however, an admitted position that those grounds have been rejected by this Commission in a number of consumer complaints instituted against the OP, including C.C. No.3072/2017" "Yogesh Maan and Anr. Vs. M/s. Imperia Structures Ltd. decided on 29.07.2019. Such grievances therefore need not be resisted.
(3.) The decision of this Commission in Yogesh Maan and Anr. Vs. M/s. Imperia Structures Ltd. (Supra) to the extent it is relevant reads as under: "3. The Developer filed their Written Version, inter alia, stating that this Commission does not have pecuniary/territorial jurisdiction to entertain the Complaint. The Complaint pertains to a commercial transaction and should be referred to an Arbitrator. Flat No. D-1604 in the project in question had been allotted to the Complainants as per terms and conditions of the Agreement executed between the parties and the consideration agreed to be paid by the Complainants to the Developer was Rs.74,31,275/- as per the construction linked plan. The construction of the project was to be completed within a period of three and half years from the date of execution of the agreement unless there was delay/failure due to reasons beyond the control of the Company, including Force Majeure events, compliance of new rules, regulations, orders or notifications made/issued by the Government or any other authorities with respect to construction at the project site. All other charges other than Basic Sale Price were informed to the Complainants at the time of submission of the application form and the charges towards Car Parking, PLC, Club Membership etc. form part of the consideration of the flat. The value of the flat has appreciated since the date of booking. The Complainants despite alleged delay in the project did not exercise the option to cancel the booking under Clause 11.4 of the Agreement and are taking the benefit of appreciation on cost of the flat. The delay in the completion of the project was on account of various orders passed by National Green Tribunal, De-monetization, delay in the approvals/sanctions, non-payment of dues by the allottees, contractual labour strikes, and delay in providing external development works by the government authorities etc. 9. The facts not in dispute are that the Complainants entered into a Builder Buyer Agreement with the Developer in the year 2013 and paid a sum of Rs.62,06,167/- out of the total sale consideration of Rs.73,31,275/-, but admittedly the subject apartment is still not completed though the stipulated period of 42 months from the date of execution of the agreement, entered into between the parties, for handing over possession of the apartment booked had expired long back. 10. The Developer in their Affidavit of evidence submitted that the Complainants are not 'consumers' as the subject flat was purchased for commercial purpose. This Commission in FA No. 530 of 2015 (Sai Everest Developers and Anr. Vs. Harbans Singh) has laid down the principle of law that when the plea that the said flat has been purchased for commercial purpose is raised by the Developer, the onus of proof shifts to the Developer to establish whether the Complainant has purchased the subject flat for trading/dealing in real estate. In the instant case there is no documentary evidence to establish that the Developer has discharged this onus. In the absence of any evidence to substantiate this contention, we are of the considered view that the Complainants are 'consumers' as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. We are also of the view that this Commission has the Territorial Jurisdiction to entertain this Complaint and the plea raised by the Developer regarding Arbitration has already been settled by the decision of a Larger Bench of this Commission in Consumer Complaint No. 701 of 2015, Aftab Singh Vs. EMAR MGF Land Limited and Anr., which has also been recently affirmed by the Hon'ble Apex Court. Further, in view of Larger Bench decision of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. - I (2017) CPJ 1 (NC), this Commission also has the pecuniary jurisdiction to entertain the Complaint. 11. It is pertinent to note that the Developer has not filed any evidence to support his contention that the delay occurred due to force majeure events. In fact demonetization, non-availability of water and contractual labour, delay in notifying approvals etc. cannot be construed to be force majeure events from any angle. 15. Keeping in view the admitted incomplete construction and considering the stipulation provided in Clause 11.4, this Complaint is partly allowed, directing the Developer to refund the amount deposited with simple interest @ 9% p.a. from the respective dates of deposits till the date of realization together with costs of ?50,000/- to be paid to the Complainants."? ;


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