R.K.AGRAWAL, J. -
(1.) The present Consumer Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act") against Ozone Projects Private Limited through its Managing Director, Mr. S. Vasudevan (hereinafter referred to as the 'Builder').
(2.) The facts of the case as enumerated in the Complaint are that in response to an advertisement of the Builder proposing to develop and sell Residential Apartments in their Project 'The Metrozone' located at Koyambedu, Chennai (hereinafter referred to as 'Project') and the assurance given by the Representative of the Builder that the Project would be ready for occupation by November, 2012, Mr. Haresh Bathija and his wife Kiran Dhameja (hereinafter referred to as 'the Complainants') purchased one Flat from the Builder in their Project for the use of his parents by availing Housing Loan from the HDFC Bank.An 'Agreement for Sale' was entered between the Parties on 30.11.2010 to purchase the Schedule D Property being an undivided share (UDS) of 564 sq.ft. in the Schedule C Property together with all other rights for a consideration of Rs. 22,56,000/-.A Construction Agreement dated 30.11.2010 was also executed between the Parties for purchasing a Flat, i.e., Unit No. H-202 in Tower H/2 measuring an area of 2062 sq. ft. with one car parking at a cost of Rs. 1,21,76,070/-.The total sale consideration agreed was fixed at Rs. 1,49,05,152/-.As per Construction Agreement, the Builder was to handover the possession of the flat within 2 years from the date of Agreement, i.e., by 30.11.2012.The Complainant deposited a sum of Rs. 1,38,55,893/-, i.e., more than 90% of the sale-consideration with the Builder despite that the Builder failed to deliver the possession of the flat within the stipulated period.The Complainants requested the Builder to adjust the compensation for delayed possession amounting to Rs. 3,73,710/- as on October 2013 from the balance outstanding amount payable against the cost of the flat.The Builder agreed and sought few days' time to arrive at the actual outstanding amount.Despite that after repeated requests and reminders, Builder failed to confirm the balance outstanding amount to the Complainants.The Complainants deposited a sum of Rs. 14,10,974/- towards the completion of internal plastering installment on 22.10.2013.It is alleged that despite depositing more than 90% of the total purchase consideration as on 22.10.2013, Builder failed to handover the possession of the Flat even after 5 years of the Construction Agreement.The Complainant sent a Legal Notice to the Builder on 26.09.2016 demanding payment of Rs. 42,07,000/- towards compensation for the delay in handing over the possession of the Flatin terms of Clause 7 of the Agreement executed between the Parties. The Builder sent a statement on 28.09.2016 whereby compensation was calculated at Rs. 8,74,975/-.The Builder sent Reply to the Legal Notice sent by the Complainant asking him to meet for amicable settlement.But the Complainant did not convince with the reply and preferred to file a Consumer Complaint before the Tamilnadu State Consumer Disputes Redressal Commission at Chennai.Vide Order dated 07.08.2018, the State Commission returned the Complaint to the Complainant for presenting the same before the proper forum. Consequently, alleging Unfair Trade Practice and deficiency in service on the part of the Builder for not handing over the possession of the flat within stipulated period despite receiving more than 90% of the sale consideration and not paying the compensation for delay in possession as per Clause 7 of the Construction Agreement, the Complainant has filed the present Complaint before this Commission seeking following prayer:-
"i) Direct the Opposite Party to deliver the possession of the Residential Unit after completing in all respects in a liveable condition with all amenities, facilities including roads, water/electricity/sewerage connections, not limited to herein, and as represented and projected by the Opposite Party in its "Brochure" together with all necessary governmental clearances, within the time frame as may be stipulated by this Hon'ble Commission;
ii) Direct the Opposite Party to pay compensation to the Complainants herein amounting to Rs. 1,16,31,116/- which is Rs. 15/- per sq. ft. per month for delay in delivery of the flat with interest @18% p.a. thereon towards delay in payment of above said compensation as agreed by the Opposite Party together with future agreed compensation and interest till the date of making such payment by the Opposite Party herein and 18% interest on the amount paid by the Complainants herein;
iii) Direct the Opposite Party to pay compensation of Rs. 10,00,000/- towards for mental agony, torture, hardship and depression caused and monetary loss caused on account of 'Deficiency of Service' committed by the Opposite Party besides Unfair and Restrictive Trade Practice adopted by the Opposite Party;.
iv) Alternative cost of Rental accommodation amounting to Rs. 13,20,000/- at the rental rate of Rs. 20,000/- per month for a period of 65 months commencing from Feb 2013 till August 2018 and further alternatives cost of rental accommodation till the date of Order/Decree by this Hon'ble Commission; and
v) That the Opposite Party is liable to pay the differential amounts in the Stamp duty and Registration fee as per the revised market rates of lands in Urban as per the provisions of Revised Guideline Value in Tamil Nadu as the Opposite Party has failed to complete the registration and handing over of possession as on date;
vi) The Opposite Party be directed to pay the Complainants herein all legal costs at least a sum of Rs. 1,00,000/- including court fees, lawyer professional fees, travel and lodging expenses incurred by the Complainants herein in the proceedings filed before this Hon'ble Commission;
vii) Pass such other Order or Orders as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case and thus, render justice."
(3.) The Opposite Party Builder contested the Complaint by filing its Written Statement and denied the contents of the Complaint.It was stated that the Complainant had violated the Arbitral Clause of the Agreement by filing the present Complaint.It was stated that as per the Construction Agreement dated 30.11.2010 the anticipated date of delivery was within 2 years but the same was subject to force majeure and several unforeseeable circumstances. It was also submitted that as per Clause 4(e) and (f) of the Construction Agreement, the Complainant was bound to make the payment as per Schedule and to keep the Opposite Party Builder free from any loss due to non-payment of the installment on time.The Complainant did not make the payment as per Schedule and there was cumulative delay of more than 765 days in remitting 'Milestone Payments'.'Milestone Payments' means once the mutually agreed stage of construction is reached, a demand will be raised by the Builder seeking payment for the milestone achieved. As per the demand notices, 10 days' time was provided from the date of intimation of achieving each milestone to the Complainant. Although as per Clause 5(b) of the Construction Agreement, Opposite Party Builder was entitled to terminate the Agreement in case of breach of the payment terms by the Complainant, yet they neither terminated the Agreement nor charged any escalation charges from the Complainant but extended all possible support to the Complainant. The Complainant remained silent for about 4 years and suddenly asked for compensation for delay in terms of Clause 7 of the Construction Agreement. It was submitted that as per Clause 7(2) for grant of damages, the installments were to be paid as per the Payment Schedule, which the Complainant had not adhered to.;