BEFORE THE HON’BLE NATIONAL CONSUMER

DISPUTES REDRESSAL COMMISSION, NEW DELHI

COMPLAINT CASE NO. 1189 OF 2019

IN THE MATTER OF:

MRE. NEETA BHARGAVA …COMPLAINANT

VERSUS

EMAAR MFG LAND LIMITED …OPPOSITE PARTY

BEFORE THE HON'BLE NATIONAL CONSUMER

DISPUTES REDRESSAL COMMISSION, NEW DELHI

COMPLAINT CASE NO. 1189 OF 2019

IN THE MATTER OF:-

MRS. NEETA BHARGAVA ...COMPLAINANT

VERSUS

EMAAR MGF LAND LIMITED …OPPOSITE PARTY

INDEX

S. NO PARTICULARS PAGE NO.

1. Replication on behalf of the complainant to 1-32

the reply filed by the opposite party long with

affidavit

Through:

AB & Co.

Law Offices

Anubhav Bhasin/ Bhuvanesh Sehgal

(Counsel for Complainant)

C-17, Friends Colony (E) LGF

New Delhi- 110065

Ph. No. 9971090069/ 9810149006

New Delhi

Dated: 14.01.2021
REPLICATION ON BEHALF OF THE COMPLAINANT TO

THE REPLY FILED BY THE OPPOSITE PARTY.

MOST RESPECTFULLY SHOWETH:

PRELIMINARY OBJECTIONS:-

1. At the outset, without prejudice to the submissions made herein,

the Complainant denies all averments/ allegations made by the

Opposite Party/Opposite party in its reply to the Complaint filed

by the Complainant unless specifically admitted. That several

paragraphs of the Reply as filed by the Opposite Party are

contradictory to each other and thus the same are liable to be

dismissed for the said reason alone. In addition to the same the

entire reply is reiterated of the same pleading over and over again

and is bad in law and all the averments/ allegations made by the

Opposite Party do not have any merit on the issue of fact as well

as law and the same are denied.

2. That the Opposite Party in its reply has conveniently shifted the

entire onus of delay of over 3 years for not delivering the

residential house to the Complainant to its third-party contractor,

 who admittedly is not even a signatory to the Agreement

executed between the parties and neither is the said contractor

party before this Hon'ble Commission. That the contents of the

reply of the Opposite Party are completely vague and without an

iota of merit. That the Opposite Party is a habitual litigator and is

earning money on the money received from innocent customers

like the Complainant.

3. That the stand of the Opposite Party as regards that the said

residential house was bought by the Complainant for investment

purposes and hence the Complainant is not liable to get any

reliefs from this Commission, is demolished by the fact and

which is admitted by the Opposite Party that the said residential

apartment was booked and purchased by the Complainant

through a Home Loan from HDFC Bank, the said fact is not only

admitted by the Opposite Party but payments have been directly

received by the Opposite Party from the Bank.

4. It is shocking to believe that why would a prudent person, take a

Home Loan for an Investment, as being alleged. It is a matter of

 record that the Complainant till date is paying interest on the

Home Loan amount directly paid to the Opposite Party by the

said Bank. It is further pertinent to mention that no investment

can ever be said to be made where the alleged Investor is taking a

Home Loan and paying interest at the rate of more than 10% per

annum on the amounts received as Home Loan.

5. That the reply of the Opposite Party is baseless and without an

iota of merit as the Opposite Party has left no stone unturned

inorder to shy away from its liability, and has conveniently

blamed all third party factors for the delay in completion and

handover of the residential house to the Complainant. That the

Opposite Party has been collecting money from innocent

customers since 2013 and even after Seven years they have failed

to fulfil the tall promises made at the time of launch of its

projects.

6. That the reputation of the Opposite Party is such that the

Complainant is now not interested in maintaining any form of

association with them and that it is trite law that the Complainant
 cannot be forced to accept the delayed possession on the whims

and fancies of the Opposite Party. The alleged offer of possession

is nothing, but an afterthought manufactured post the filing of the

present Complaint by the Complainant. Thus, the said offer letter

is nothing but an eye wash and a document created by the

Opposite Party to set up a defence before this Hon'ble

Commission.

7. That the Complainant till date continues to pay interest on the

amounts disbursed to the Opposite Party from the Home Loan

account of the Complainant and thus, the said interest is nothing

but actual loss caused to the Complainant since 2013 till date and

the Opposite Party is wanting to wriggle out from its liability

without paying any damages to the Complainant. The

Complainant has been for the past 7 years suffering at the hands

of the Opposite Party and continues to be harassed by the

Opposite Party. That it is apposite to mention herein that the

arbitrariness of the Opposite Party is blostered by the fact that for

its delay the Opposite party is only paying approximately

Rs.15,000/- per month for the delay whereas on the other hand
 the Complainant continues to pay interest of the Home Loan

accounts amounting to more than Rs. 1,00,000/- per month. The

Complainant has been suffering for the past 7 years at the hands

of the Opposite Party.

8. That a lot of emphasis has further been drawn on the fact that

proceedings were instituted by the Complainant before RERA,

Gurugram and that the same were withdrawn and the present

proceedings were instituted. The Complainant has come to this

Hon'ble Commission for reliefs to which she is entitled too and

that proceedings before RERA duly finds mention in the

Complaint filed by the Complainant. It is further apposite to

mention herein that this Hon'ble Commission in its Judgment has

categorically permitted such complaints to be filed and it has

been rightly opined that there is no bar to institute a Consumer

Complaint. Be that as it may it is apposite to mention that the

proceedings before RERA Gurugram, stands withdrawn with a

liberty to take appropriate legal remedy, which has been rightly

taken by the Complainant.

9. That it is apposite to mention herein that the Complainant does

not own a residential accommodation of her own and that the

alleged attempt being made by the Opposite Party and the

unnecessary reliance of some form of residential house being

booked by the husband of the Complainant is of no consequence.

That the Complainant has a big family and hence its her

prerogative the manner in which she wants to live with her

family. It is further pertinent to mention that the mention of the

bookings made by the husband of the Complainant are

inconsequential as the husband of the Complainant has also

suffered at the hands of the builders/ companies like the Opposite

party and till date he has also not received possession of any

residential house.

10.That the reliance on a booking made by a third party to the

present litigation is baseless and a desperate attempt on the part

of the opposite party to seek to get reliefs to which it is not

entitled too.
11.The Present Replication is being filed by the Complainant in

addition to the Complaint under section 21 of the Consumer

Protection Act, 1986 and both may be read in consonance with

each other.

REPLY TO THE PRELIMINARY SUBMISSIONS:

1. That the contents of Para 1-4 of the Preliminary Submissions are

a matter of record and hence needs no reply. Though the

Complainant objects to the same, as the notice in the present

Complaint was issued on 10.07.2019 and the matter was thus

adjourned to 19.08.2020. That despite service the Opposite Party

chose not to appear before the Hon'ble Commission and that now

due to onset of Covid-19, the Opposite Party is trying to condone

the delay. It is apposite to mention that the Opposite Party was

completely aware about the present proceedings and it was for

this reason alone that the manufactured offer for possession letter

was issued by them. That the Opposite Party is trying to the take

shield of the Covid-19 pandemic and get reliefs from this Hon'ble

Commission on the basis of incorrect facts.

PARAWISE REPLY TO BACKGROUND:-

That the contents of para under reply are un-numbered and hence the

contents which are contrary to the record and not specifically denied

due to inadvertence are denied and nothing shall bedeemed to be

admitted incase the same is not specifically denied.

The contents of the Background are admitted to the limited extent as

a matter of record and relating to the clauses of the Buyer's

Agreement dated 05.04.2013. That anything contrary to the record is

denied in entirety. It is submitted that the compliance of the

respective obligations under the Agreement was applicable to both

the parties and not to the Complainant alone. The Opposite party

mentions that the time period extension is mentioned under the

contract but has failed to elaborate any clause as regards the said

extension. That the Opposite Party is for the firm time trying to shy

away from its obligation and trying to mislead this Hon'ble

Commission to believe that such delays are normal in big projects.

That the said approach of the Opposite Party reflects the casualness

as regards the project and the complaint filed before this Hon'ble
Commission. That the Opposite party admits to the fact that the

possession had to be handed over within 42 months from the date of

start of construction and that the Opposite party has failed to fulfill

the same. That it is denied that the delay was foreseen at the time of

execution of the contract Clause 16(a) has been included in the said

Agreement. It is apposite to mention herein that the said penalty is

due and payable by the Opposite Party to the Complainant in

addition to the damages. Thus, the simple reason of a penalty clause

mentioned in an agreement cannot dilute the admitted liabilities of

the Opposite Party.

That the Opposite party has reiterated clause 10(h), Clause 10(i),

Clause 12, Clause 14(a), Clause 14(b)(v), Clause 16(a) of the

Agreement in isolation, the Claimants seeks to rely upon the other

clauses of the Agreement. It is trite law that meaning full reading

and interpretation needs to be done and not on the basis of whims

and fancies of the Opposite Party. It is apposite to mention that the

arbitrariness of the Opposite Party in the agreement is also reflected

by the fact, that any delay on the part of the Claimants is attributable

to a penal interest at the rate of 24% per annum whereas on the other
hand a delay of over three years by the Opposite Party is liable for a

penalty of a meager amount. The Opposite party had left no stone

unturned to harass the Complainant and exploit the money received

by it without delivery of the residential house within the stipulated

time.

It is denied that the progress of a project is planned based on the

payment commitments by the flat buyers and default in making

timely payment by flat buyers adversely affects the progress of the

project. It is vehemently denied that there have been defaults in

payments by the Complainant. It is submitted by the Complainant

that at the time of booking of the Flat, the Complainant had paid Rs.

10,00,000/- (Rupees Ten Lakhs Only) vide Cheque bearing No.

73116 dated 27.10.2012 and receipt dated 27.02.2013 was issued by

the Opposite Party for the same. It is further submitted that the

Complainant further paid a sum of Rs.3,42,312/-(Rupees Three

Lakhs Forty Two Thousand Three Hundred and Twelve Only) vide

Cheque bearing No. 738814 dated 25.03.2013 and receipt dated

26.03.2013 for the said amount inclusive of the service tax was

issued by the Opposite Party to the Complainant. It is further

submitted that as per Annexure-III, the Complainant made further

payments of the installments from time to time as per the demands

raised by the Opposite Party and it is a matter of record that till date

a sum of Rs.1,39,61,179.92/- (Rupees One Crore Thirty Nine Lakhs

Sixty One Thousand One Hundred Seventy Nine and Ninety Two

Paisa Only) i.e. almost 95% of the total cost of the of flat, has been

paid by the Complainant and receipts have been issued by the

Opposite Party to the Complainant for the payments made by her. It

is further the case of the Complainant that the Complainant is not at

all concerned with the other allottees and has cleared her payments

already and the same is well within the knowledge of the Opposite

party who had issued receipts for the same. Moreover, "Time is the

Essence" principle should be applicable to both the parties such that

on one hand the allottee makes the payment in time and on the other

hand, the developer delivers the flat in time and it cannot be one way

affair, as explained by the Opposite Party herein in the said

paragraph under reply.

It is further denied that the construction work of the project was

further affected due to unforeseen force majeure conditions having

direct impact on the progress in construction. It is also denied that

the opposite party has undergone re-structuring and inorder to

ensure focused leadership and development of the on-going projects

by way of process of de-merger of the opposite party pursuant to a

scheme of Arrangement under Section 391-394 of the Companies

Act, 1956. It is submitted that these statements are of no concern

here and the same are not even mentioned in the Terms and

Conditions of the Buyer's Agreement entered between the parties. It

is submitted that the Opposite Party is trying to take defences which

are baseless and devoid of merit.

It is emphatically denied that without appreciating the agreed terms

of the contract and despite such chronic default in payment by the

Complainant herself and other flat buyers, the Opposite party has

completed the construction of the unit in question within a

reasonable time and has offered possession of the unit to the

Complainant after obtaining the Occupancy Certificate and denied

that the Complainant has filed the present misconceived complaint

with a wrongful intention to extract money from the opposite party.

It is submitted that the Complainant had taken a home loan from

HDFC Bank on 27.02.2013 to pay the installments for the said

residential flat booked by her. Infact, the demands for payments that

were raised by the Opposite from time to time, amounts of which

were directly received by the Opposite party from the said bank.

It is further submitted by the Complainant that the Opposite Party is

purposely deposing falsely and is deliberately and intentionally

concealing the true and actual facts and thus the submissions made

by the Opposite Party being devoid of any merit, are liable to be

rejected. That Opposite Party may be put to strict proof thereof since

they failed to construct and furnish the said residential flat in time as

was assured by them and the offer of possession document was

nothing but a sham document manufactured by the Opposite Party.

Further as regards Clause 16(a), no explanation has been given

regarding the "extended period". It is a matter of record that the

Opposite Party was to complete and furnish the flat and handover by

11.05.2017 i.e. 42 months from the start of construction and only 3

months grace period was given. It is further a matter of record that

the Opposite Party never handed over the possession even after the

expiry of (42+3 months) and thus, is able to refund back the monies
of the Complainant. That the Opposite Party may be put to strict

proof thereof

REPLY TO THE PRELIMINARY OBJECTIONS:

1. That the contents of Pars I of the Preliminary Objections are

vague and hence are denied.

2. That the contents of Para 2 of the Preliminary Objections are

denied for the want of knowledge. The Opposite Party is put to

strict proof thereof. That as per the experience of the

Complainant, the Opposite Party has harassed several innocent

citizens, who had booked their dream residential house on the

basis of the false representations made by the opposite Party.

3. That the contents of Para 3 of the Preliminary Objections are

denied being false and incorrect. It is vehemently denied that the

complaint of the Complainant has been filed with the view to

avoid making payment of the legitimate dues to the Opposite

party and to extract money from the Opposite party. It is

submitted that the Opposite Party is setting up a false and flimsy

stand and trying to pressurize the Claimants and hold her

 accountable for their own misdeeds. Thus, the contentions of the

Opposite Party are vehemently denied by the Complainant.

Infact, it is a matter of record that the Opposite Party has

received almost 95% of the sale consideration and have failed to

give possession on the date fixed.

4. That the contents of Para 4 of the Preliminary Objections are

wrong and misconceived and therefore denied in its entirety. It is

denied that the Complainant has been claiming that she doesn't

have a house in Delhi/NCR and she is in dire need of a house. It

is further denied that the Complainant has provided her place of

residence as J-244, Sainik Farms, Pushpa Bhawan, New Delhi, it

is the temporary residence of the Complainant. It is also denied

that the present complaint has been filed only on the ground that

the possession has been delayed. It is further denied that the

possession has been offered within months from the date of filing

of the complaint, and the main grievance of the Complainant is

satisfied, and she cannot refuse taking over possession. It is

vehemently denied that not accepting possession even after

receiving the offer for the same substantiates the stand of the
Opposite party that the present unit at "Imperial Gardens",

Sector-102, Gurgaon, is clearly booked for

commercial/investment/speculative purposes and denied that

consequently, the Complainant herein does not fall within the

definition of "Complainant" in terms of Section-2(1) (b) of the

Consumer Protection Act, 1986 and "Consumer" in terms of

Section-2 (1Xd)(ii) of the Consumer Protection Act. It is

submitted by the Complainant that the Opposite Party does fall

within the definition of "Complainant" in terms of Section -2(1)

(b) of the Consumer Protection Act, 1986 and "Consumer" in

terms of Section-2 (1)(d)(ii) of the Consumer Protection Act and

the same has been settled by a recent Judgment of the Hon'ble

Supreme Court of India - "Imperia Structures Ltd. v. Anil Patni

and Ors." decided on 02.11.2020, which the Complainant is

seeking to rely upon wherein it has been held that the

Complainants had purchased one residential apartment each for

self-use and had taken home loans and thus, they satisfied the

requirements of being "Consumers' under the provisions of

Consumer Protection Act, 1986. Further, the Complainant

submits as a matter of record that the Opposite Party failed to

deliver the possession on time as was assured and agreed to

under the terms and conditions of Buyer's Agreement, within the

stipulated time period including the grace period i.e. on

16.08.2017 and have failed to deliver possession till the date of

filing of the present Complaint. It is shocking to note as to how

the Opposite Party is claiming a delay of over 3 years a minor

delay. It is further submitted that the Complainant has suffered

huge losses due to the said act of the Opposite Party of delaying

and breaching the terms of the Agreement. It is the case of the

Complainant that aforementioned acts of the Opposite Party

amount to unfair trade practice in receiving the amounts by the

Complainant under false promises and assurances and by

misrepresenting, knowing fully well that the Opposite Party

would not be able to complete the said project and handover the

possession completed and furnished to the Complainant within

the assured time period. The Opposite Party may be put to strict

proof thereof. Infact, this particular residence as mentioned in the

paragraph is where the Complainant is staying with the courtesy

 of some other person since she does not have a house of her own

in whole NCR and that is why the Complainant booked a flat in

the housing project of Opposite Party as she was very much

interested in getting possession of the said flat for her own

residence as agreed in the Agreement. As the Complainant has

suffered immensely for over 7 years at the hands of the Opposite

Party, she cannot be forced to accept the baseless offers of the

Opposite party.

5. That the contents of Para 5 of the Preliminary Objections are

admitted to the limited extent as a matter of record that Mr.

Rahul Bhargava, husband of the Complainant had also purchased

residential house and filed consumer complaints before the

Hon'ble NCDRC CC/171/2017 titled as Rahul Bhargava vs. M/s

BPTP Ltd. wherein refund of amount paid alongwith interest 8.5

% p.a. from the date of each payment till the date of refund has

been agreed and in CC/2112/2016 titled as Rahul Bhargava vs.

Ansal Housing & Construction Ltd. wherein this Hon'ble

Commission has directed to refund amount along with interest @

10% p.a from the date of each payment till the date of refund, but
rest of the contents are denied. It is emphatically denied that

these properties including the one in question were bought for

investment purposes and denied that copies of orders passed by

this Hon'ble Commission have any relevance of adjudication of

the present dispute between the parties. Though the other

properties were booked by the husband of the Complainant, Mr.

Rahul Bhargava, possession of which have not been received by

him as well. That the Complainant herself i.e. Mrs. Neeta

Bhargava has no residential property in her name and also the

home loan taken by her alongwith her son Karan Bhargava and

her daughter-in-law Pooja Bhargava, from HDFC Bank for the

said Flat in question and the interest that the Complainant is

paying till date makes it clear that the said flat booked by her is

for residential purpose for her daughter who is unmarried and not

for any investment purpose and the same is well within the

knowledge of the opposite party. That the Opposite Party may be

put to strict proof thereof since if the same had been for

investment, then the Complainant would not have taken any loan

from HDFC Bank and the Complainant would have actually

 invested all her money at one time instead of taking Home Loan

at interest rate of more than 10%. It is further pertinent to

mention herein that the Complainant has an unmarried daughter

and the said house was taken for residential accommodation with

her. The Opposite Party has made bald and false allegations

against the Complainant inorder to wriggle out of its own

liability.

6. That the contents of Para 6 of the Preliminary Objections are

vague and therefore denied. It is settled law that the grievances

raised in the purported complaint have to be examined in terms

of the Buyers Agreement dated 05.04.2013 and have to be

decided in accordance with the terms and conditions as set out

therein and the law of the land and not as per the whims and

fancies of the Opposite Party. It is most vehemently denied that

the Consumer Protection Act, 1986 does not confer any power

upon the Consumer Fora to amend or modify the terms of the

contract and denied that Prayer seeking refund with 18% interest

and compensation on various heads, which is contrary to the

Agreement and beyond the provisions of the Consumer

 Protection Act. It is submitted that the Opposite Party is making

vague statements since as per the provisions of the Law, once

delivery is not given in time, the buyer is well within her rights to

decide whether to continue her association with the developer or

to seek for refund. It is further submitted that no contractual

obligation prevent the Complainant herein to take action against

the Opposite Party once it has failed to fulfill its commitment and

obligations to deliver the flat in time even after the permitted

extended period. That the Opposite Party may be put to strict

proof thereof.

7. That the contents of Para 7 of the Preliminary Objections are

incorrect and therefore denied in its entirety. It is vehemently

denied that the conduct of the Complainant clearly shows that

she never wanted to takeover possession as she has now when the

possession has been offered delayed the taking over of the

possession deliberately. It is further denied that the Complainant

to avoid taking payments has misrepresented and misstated the

facts in the purported Consumer Complaint only with a view to

mislead the Hon'ble Commission into directing refund with

interest as per the terms of the contract between the parties. It is

submitted that the Opposite Party is making bald and false

allegations and the same are completely unsubstantiated and

without any merit. It is further submitted by the Complainant that

the Opposite Party never even offered the possession to her even

when the Complainant had made the payment of 95% of the cost

of the said flat, that the said offer was only made after the

issuance of notice by this Hon'ble Commission in the present

Complaint. The said offer of possession is nothing but an eye

wash manufactured at the instance of the Opposite Party inorder

to setup this baseless defence before this Hon'ble Commission.

That the Complainant instituted appropriate proceedings before

the RERA Court as well as the present case before the Hon'ble

Commission seeking for refund of her monies to the tune of Rs.

1,39,61,179.92/- (Rupees One Crore Thirty Nine Lakhs Sixty

One Thousand One Hundred Seventy Nine and Ninety Two Paisa

Only), already paid by the Complainant to the Opposite Party.

That the Opposite Party may be put to strict proof thereof. The

conduct of the Opposite Party is such that the Opposite Party is

 not entitled to any discretionary relief as its entire Reply is based

on concealment and suppression of true and correct facts. It is

submitted that the Complainant cannot be forced by the Opposite

Party to take possession after such a delayed period.

8. That the contents of Pare & of the Preliminary Objections are file

and incorrect and therefore denied. It is denied that it may kindly

be taken into consideration that if the Complainant, as alleged

had booked the said Unit for her own residential needs, then

suddenly at this juncture when possession has been duly offered

is not willing to take-over the possession and rather seeking

refund of the entire for no justifiable reasons. It is also denied

that by taking into consideration all the factual scenario and

closely scrutinising the conduct of the Complainant, only one

prima facie conclusion, in the humble submission of the Opposite

Party can be reached which is the Complainant is a speculative

investor and had, from the very inception booked the said Unit

for the purpose of investment". It is the case of the Complainant

that the submissions made by the Opposite Party are absolutely

vague and without any basis and thus, the Complainant craves
 leave of this Hon'ble Commission to refer to the relevant

paragraphs of the present Replication and the same are not being

reiterated herein for the sake of brevity. Further, it is submitted

that when the Opposite Party did not give possession of the flat

even after extended period of 3 months, i.e. by 11.05.2017, the

Complainant filed a case in RERA Court, Haryana on

30.10.2018. Later the Complainant withdrew her case and

immediately with liberty filed the present proceeding before this

Commission. Hence, for all purposes the Complainant's intention

of cancelling the booking of the flat is evident since 30.10.2018.

That the Opposite Party may be put to strict proof thereof. That

the Complainant is not interested in maintaining any form of

association with the Opposite Party.

9. That the contents of Para 9 of the Preliminary Objections are

admitted to the limited extent as a matter of record that it must

also be considered that in terms of the Buyer's Agreement, the

possession was to be delivered within a period of 45 months

(42+3, months) from the date of start of construction i.e.

11.11.2013 as admitted by the Complainant and as finds

reference in the Statement of Account, which payment milestone

was accepted and payment was made towards the same by the

Complainant. It is denied that the possession was endeavoured to

be given to the Complainant on 11.08.2017 and the same was

offered on 20.11.2019, with a reasonable delay of approximately

2 years. It is submitted that the reasonable delay cannot be

decided on the basis of the whims and fancies of the Opposite

Party, the Opposite party has failed to deliver the said house by

May, 2017 and thus, the Opposite Party has no locus to force the

Complainant to take possession of the said residential house. It is

denied that this delay Certificate which was issued by the

competent authority after a delay of approximately & the

Opposite Party and ought to be excluded from the time when the

possession was to be offered to the Complainant and when the

same was actually offered. It is submitted that the Opposite Party

is purposely deposing falsely and trying to wriggle out from its

liability. It is submitted that the Force Majeure clause was never

invoked by the opposite Party in addition to the same the

conditions as mentioned are not included in the said Clause. It is

 further submitted that the Opposite Party by shifting the onus on

third party entities, is just trying to wriggle out from its habilities

and obligations.

10.That the contents of Para 10 of the Preliminary Objections are

denied vague and irrelevant and denied in its entirety that in

terms of Section 74 of the Indian Contract Act, 1872, in an

agreement where liquidated damages are already provided for/

fixed between the parties for breach thereof, no further

compensation damages can be given, unless specifically proved

by leading detailed evidence and documents. Since this is not

possible under summary procedure as per which the Consumer

Fora have been mandated to function, the matter maybe relegated

to civil courts for proper adjudication. That the Opposite Party

may be put to strict proof thereof. It is submitted that the said

understanding of the Opposite Party is contrary to the settled

principle of law by the Hon'ble Supreme Court of India in Civil

appeal No. 6239/2019 in the case titled W. Cdr. Arifur Rahman

Khan and Aleya Sultana and Ors. Vs. DLF Southern Homes Pvt.

Itd., dated 24.08.2020 wherein the Hon'ble Supreme Court has

 awarded the said penal interest along with simple interest at the

rate of 6% per annum in addition to penal interest as provided

for. Thus, the allegations as regards a civil issue is concerned, is

based on the figments of imagination of the Opposite Party and is

rejected in entirety. The present para seems to be a desperate

attempt on the part of the Opposite Party wriggle out from its

liabilities.

11.That the contents of Para 11 of the Preliminary Objections are

wrong and misconceived and therefore denied in its entirety. It is

emphatically denied that the Complainant is approbating and

reprobating at the same time and picking and choosing clauses of

the Buyer's Agreement which suits her whilst ignoring the others,

which bind them to take over possession of the said Unit along

with compensation at the agreed rate of liquidated damages in

case of no default in making payments, as provided for in the

Buyer's Agreement. It is submitted by the Complainant that the

no prima facie case is made out against the Complainant and in

favour of the Opposite Party and all the averments made by the

Opposite Party deserves to be dismissed outrightly as they are

 just trying to harass the Complainant, who has already suffered a

lot of prejudice on account of the misrepresentations and false

promises made by the Opposite Party pursuant to which the

Complainant booked a Flat in their housing project and suffered

great losses and is till date paying Interest on the Bank Loan.

That the Complainant is seeking reliefs only which she is entitled

to as per Agreement entered into between the parties, thus, the

allegations made by the Opposite Party are false and fabricated

and they may be put to strict proof thereof. The said agreement

stands terminated by the Complainant vide its legal notice and

the Opposite Party chose not to reply to the same.

12.That the contents of Para 12 of the Preliminary Objections are

admitted to the limited extent as a matter of record that the loss

must be proved by the one who claims such loss and the case of

the Complainant must stand on its own legs. The Complainant

has filed documents in support of the said loss and hence the said

submissions are baseless. It is submitted that the Opposite Party

in its defence have mentioned several judgments, but fails to

mention the aforementioned Judgment of the Hon'ble Supreme

Court of India, wherein the interest along with penal interest as

mentioned in the Agreement was provided for. That the reliance

of case laws are irrelevant in context of the issue between the

parties. That the Opposite Party for reasons best known to it

referred to judgments in its pleadings which are of no relevance.

That mere reliance on judgments cannot negate the facts of the

issue and hide the defaults of the Opposite Party. The

Complainant seeks to rely upon the relevant case laws at the time

of arguments and not burdening the court record with reiteration

of judgments. It is also denied that the Complainant has not

impleaded HDFC Ltd. as a necessary party, since the loan has

been taken from them in May 2013 and the Tripartite Agreement

has been executed on 23.05.2013. Furthermore, it is denied that

HDFC Ltd. also requested Opposite Party to mark their lien on

the unit, which was, under instructions of the Complainant

marked by way of a Permission to Mortgage Letter dated

23.05.2013 issued by Opposite Party to the lending institution.

The loan has been taken out of public funds and therefore, the

same, must be secured and the lending institution is therefore a

necessary and proper party to the matter. It is submitted that the

Complainant has suffered huge losses on account of non-

fulfilment of the contractual obligations and the false

promises/assurances given by the Opposite Party, amounting to

deficiency in services on their part and unfair trade practice

adopted by the Opposite Party. It is further submitted that the

Opposite Party very well had complete knowledge of the fact that

the Complainant had booked the flat for her self-use and not for

any investment purposes for which the Complainant took a loan

from HDFC Bank and she continues to pay interest on the same.

It is submitted the said Bank is not a necessary party to the

present proceeding as the Complainant continues to pay the

Interest on the Loan amount till date without any default. Further,

the Complainant has paid almost 95% of the total cost of the flat

and receipts for the same were issued by the Opposite Party and

therefore the loss suffered by the Complainant is in the

knowledge of the Opposite Party who have delayed the

possession indefinitely and breached the terms of the said

Agreement. That the Opposite Party is now setting up a false and

 flimsy stand and trying to pressurize the Complainant and hold

her accountable for their misdeeds. That the Opposite Party may

be put to strict proof thereof.

13.That the contents of Para 13 of the Preliminary Objections are

wrong and misconceived and therefore denied. It is emphatically

denied that the purported complaint has wrongly proceeded on

the basis that time is the essence of the Agreement for the

delivery of possession of said Apartment in terms of Clause 14 of

the Buyers Agreement dated 05-04- 2013. It is further denied that

a joint reading of clauses 14, 16 and 31 make it clear that time is

not the essence of the Agreement for the delivery of possession

of said Unit and delay is contemplated between the parties in the

terms of the Agreement. It is denied that the Buyer's agreement

already safeguards the rights of buyers in case of delay in

delivery of the possession. Further, Clause 16 (a) provides for the

delayed compensation Rs. 7.50/- per sq. ft. per month in case the

developer is not able to handover the possession within the

stipulated period, subject to force majeure conditions as set out in

Clause 31 and allottees complying with all the terms and

conditions under the said agreement. It is also denied that apart

from the inherent contradiction and the evident falsity of the

'promised' date of delivery of possession of the said unit from the

Agreement itself, the Clauses of the Agreement would make it

clear that time can never be regarded as the essence of the

Agreement for delivery of possession of the unit. It is submitted

that it is very clearly mentioned in Clause 14 of the said

Agreement that the Opposite Party had to handover the

possession of the flat to the Complainant within 42 months from

the date of start of the construction and in addition to the same,

the Opposite Party was entitled to a grace period of 3 months

after the expiry of the said period of 42 months for applying and

obtaining the completion certificate/occupation certificate in

respect of the project. It is a matter of record that the Opposite

Party had failed to deliver the possession and though the

construction was not being completed according to the payment

plan, the Opposite Party intentionally and deliberately inorder to

recover money from the Complainant, kept on demanding money

for the same knowing fully well that they have failed to adhere to
 the construction plan thereby causing huge financial losses to the

Complainant. It is further submitted that the Opposite Party

cannot state anything contrary to the terms of the Buyer's

Agreement dated 05.04.2013 entered into between the parties.

Thus, all the statements made by the Opposite Party in the said

paragraph are false, fabricated, baseless and are based on his

general figments of imagination and hence should be rejected in

its entirety. Moreover, "Time is the Essence" principle is

applicable to both the parties such that on one hand the allottee

makes the payment in time and on the other hand, the developer

delivers the flat in time and it cannot be one sided transaction, as

attempted to be interpreted by the Opposite Party herein in the

said paragraph under reply.

14. That the contents of Para 14 of the Preliminary Objections are

false and therefore denied in its entirety. It is denied that the

delay in construction of the project is attributable to the

contractor deputed in the project. It is further denied for the want

of knowledge that the Opposite Party issued several letters dated

01.05.2018. 14.05.2018, 05.09.2018, 07.09.2018, 26.05.2018,

22.01.2019 to its contractor M/s Capacite Infra Projects Limited,

due to their slow progress of civil structure, finishing, internal

plumbing and electrical work at the project site and sought

expeditious finishing for completion work and copies of the

various letter sent to the contractor dated 01.05.2018,

14.05.2018, 05.09.2018, 07.09.2018, 26.05.2018 & 22.01.2019).

It is the case of the Complainant that the Buyer is not concerned

for the actions of builder's contractors or sub-contractors since

the Agreement is between the buyer and the developer. It is

further submitted that as far as the present case is concerned, the

Complainant and the Opposite Party entered into the Buyer's

Agreement dated 05.04.2013 wherein it was mentioned in detail

regarding the terms and conditions and obligations upon the

parties till such time the delivery of the said Flat/Unit is handed

over to the Complainant and as such the Complainant was not

concerned with the acts of the contractor of the Opposite Party.

That the Opposite Party may be put to strict proof thereof as the

Opposite Party has very conveniently shifted the onus in order to

evade from its liability.

15.That the contents of Para 15 of the Preliminary Objections are

admitted to the limited extent as a matter of record that the

Complainant earlier to filing of this complaint had filed a

complaint before the Hon'ble Real Estate Regulatory Authority

(RERA), Gurgaon bearing No. HRR/GGM/CRN/1746/2018.

However, the same was withdrawn vide order dated 29.05.2019

on the ground that the complainant wanted to pursue her

grievances in some other tribunal/authority. It is submitted by the

Complainant that Hon'ble Real Estate Regulatory Authority

(RERA) and this Hon'ble Commission are two separate

institutions and there is no bar that once a complaint has been

filed in one of these, it cannot be filed in the other. It is further

submitted that as the Adjudication officer at RERA, Gurgaon is

not legally permitted to award compensation, therefore, the

Complainant has with liberty withdrawn the said complaint and

is pursuing the present complaint before this Hon'ble

Commission. The Complainant further submits that the

Complainant had to file complaint since the Complainant was

tortured and harassed by the acts of the Opposite Party who

 indulged in unfair trade practice and failed miserably to honour

its commitment of handing over the possession of the flat within

the stipulated time period and was not even refunding back the

money of the Complainant even after cancellation of the booking

of the flat later on. That the Opposite Party may be put to strict

proof thereof for defaulting in several obligations under the

Buyer's Agreement dated 05.04.2013.

16.That the contents of Para 16 of the Preliminary Objections are

false and vexatious and therefore denied in its entirety. It is

vehemently denied that the complaint of the complainant being

false and vexatious merits dismissal under Section 26 of the

Consumer Protection Act which clearly stipulates that where a

complaint instituted before the District Forum, The State

Commission or the National Commission, as the case may be, is

found to be frivolous or vexatious, it shall, for reasons to be

recorded in writing, dismiss the complaint with cost. That the

Opposite Party may be put to strict proof thereof and further the

Complainant craves leaves of this Hon'ble Commission to refer

to the relevant paragraphs of the present Replication and the

 Complaint and the same are not being reiterated herein for the

sake of brevity.

17. That the contents of Para 17 of the Preliminary Objections are

incorrect and are denied. The reliance on the said judgment is

completely inconsequential and that the Opposite Party is

seeking to rely upon judgments which are not relevant in

adjudication of the present dispute. It is an admitted fact that the

Opposite Party has till date not able to fulfil its obligations under

the Agreement and infact, the delay at its end is unexplainable

and attempts have been done to shy away from its liability. The

loss suffered by the Complainant is the interest she is paying

since 2013 on the Home Loan taken by her for the residential

house.

18. That the contents of Para 18 of the Preliminary Objections are

false and vexatious and therefore denied. It is denied that the

Opposite party is not responsible for any mental suffering, if any,

suffered by the Complainants and rest of the contents are

admitted being a matter of record. That it is trite law that the

 actions of the Opposite Party as such that the Complainant is

liable to receive the reliefs as being prayed for.

19. That the contents of Para 19 of the Preliminary Objections are

wrong and misconceived and therefore denied. It is denied that

adjudication upon the allegations made by the Complainant

against the Opposite party and the nature of relief claimed therein

require detailed examination and evidence, which cannot be

determined in a summary fashion under the Consumer Protection

Act. It is further denied that the disputed questions of facts such

as damages for the physical and mental torture, agony,

discomfort and undue hardship cannot be entertained under the

provisions of Consumer Protection Act, 1986 as such the

Complaint filed by the Complainants is liable to be dismissed on

this ground alone. That the Opposite Party may be put to strict

proof thereof and the Complainant reserves her right to give her

submissions during the course of argument. In addition to the

same, the present complaint is perfect case of consumer issue and

the same needs to be adjudicated by this Hon'ble Commission for

the deficiency in service on the part of the Opposite Party.

20. That the contents of Para 20 of the Preliminary Objections are

wrong and misconceived and therefore denied. It is denied that

the Complaint filed by the Complainant is not maintainable in

view of the settled law in a plethora of decisions of the Hon'ble

Supreme Court of India, whereby it has categorically been laid

down that the agreed clauses of contract are binding on the

parties and the Courts shall not interfere with the terms and

conditions agreed to between the parties. It is denied that the

Complaint filed by the Complainant for reliefs which are clearly

beyond the scope of the unchallenged terms and conditions of the

agreement entered into between the Opposite Party with the

individual allottee, is not liable to be entertained in view of the

position of Law enumerated above. It is submitted that the said

Agreement stands duly terminated by the Complainant vide its

legal notice and the same has till date not responded by the

Opposite Party. That the Opposite Party may be put to strict

proof thereof.

21. That the contents of Para 21 of the Preliminary Objections are

false and incorrect and therefore denied. It is denied that in view

 of notification of the Consumer Protection Act, 2019, and

pecuniary jurisdiction being a procedural law having

retrospective application, this Hon'ble Commission lacks

pecuniary jurisdiction to try and entertain the present Complaint.

It is further denied that without prejudice, given that the

possession of the Unit has already been offered, the subject

matter of dispute narrows down only to compensation and by no

stretch of calculation, it can go beyond Rs.1 Crore, hence this

Hon'ble Commission has no pecuniary jurisdiction to try and

entertain this complaint. That the Opposite Party may be put to

strict proof thereof. It is reiterated that it settled law that the said

law is prospective and that this Hon'ble Commission as ample

power to adjudicate the present issue.

22. That the contents of Para 22 of the Preliminary Objections are

false and incorrect and therefore denied. It is vehemently denied

that the Complaint filed by the Complainant is further liable to be

dismissed on the ground that it has been filed beyond the time

prescribed under Section 24A of the Consumer Protection Act,

1986 vis-à-vis the cause of action alleged by the Complainant

 herself in the Complaint. It is submitted that the present

Complaint is well within limitation and the Opposite Party is

leaving no stone unturned to mislead the Hon'ble Commission

and thus, no prima facie case is made in favour by the Opposite

Party and against the Complainant.

23. That the contents of Para 23 of the Preliminary Objections are

vague and irrelevant and therefore denied. It is vehemently

denied that the present complaint does not raise any consumer

dispute as defined under Sec- 2(e) of the Consumer Protection

Act, 1986 and therefore the same is liable to be dismissed. It is

submitted that the issue whether the the Complainant satisfies the

requirement of being "Consumer" under the provisions of

Consumer Protection Act, 1986 is rightly in favour of the

Complainant and has been made clear by the relevant paragraphs

of the present Replication and Complaint and the Complainant

craves leaves of this Hon'ble Commission to refer to the same.

That the Complainant is a consumer as per the definition of

Consumer, the Complainant has suffered immensely due to

 deficiency of service and Unfair trade practise on the part of the

Opposite Party.

24.That the contents of Para 24 of the Preliminary Objections are

false and incorrect and therefore denied. It is denied that the

claim of the Complainant of 18% penal interest with refund is

barred in law in terms of Section 74 of the Indian Contract Act as

the Complainant has agreed to penalty in the nature of liquidated

damages of Rs. 7.50/- (Rupees Seven and Fifty paisa only) per

sq. per month and now cannot claim refund or any compensation

@18% or any other amount in excess thereof. It is further denied

that Complainant in the Complaint has failed to challenge Clause

16 (a) of the Buyers' Agreement providing for liquidated

damages in favour of the Complainant in case of delay and in

absence of any challenge thereof, the Claimants, subject to

satisfaction of the other terms of the Buyers Agreement cannot

maintain its any claim in excess of Rs. 7.50/- per sq.ft. per

month. That the Opposite Party may be put to strict proof thereof.

It is the case of the Complainant that claim for 18% penal interest

with refund is very much valid since the Opposite Party has
failed to handover the possession and honour its commitment and

as per the terms of the Agreement entered into between the

parties, the Complainant is liable to seek refund due to the

default on part of the Opposite Party since the Complainant

cannot made to wait indefinitely for possession of the premises.

Infact, the Complainant has paid a sum of Rs. 1,39,61,179.92/-

from 01.11.2012 to 31.08.2017, on which the Complainant has

been paying interest to HDFC Bank. Further, basic interest rate at

10.3% works out to Rs. 14,38,001/- per year or Rs. 1,19,833.46/-

per month so the compensation of Rs. 15,000/- per month

provided in the contract is just a farce. That the Opposite Party

may be put to strict proof thereof. That the Complainant has

suffered immensely since 2013 and continues to suffer till date, it

is shocking to note that the Opposite Party is cleverly trying to

shy away from its liability by offering a meagre compensation of

Rs.15,000/- per month, in comparison to a 24% interest per

annum being charged by it for delayed payment by a buyer. The

arbitrariness and arm-twisting of the Opposite Party is

 established on a simple comparison of the said clauses of the

Agreement.

REPLY TO PARA-WISE REPLY:

1. That the contents of Para 1 of the Para-Wise Reply are admitted

and hence, need no reply.

2. That the contents of Para 2 of the Para-Wise Reply are admitted

to the limited extent as a matter of record that the amount as

mentioned in this Paragraph has been paid by the Complainant as

per the payment plan chosen by her, but rest of the contents are

denied. It is denied that the provisional allotment letter contained

all the indicative terms and conditions of allotment, which were

accepted by the Complainant without any objection or demur.

Infact, whatever was agreed between the parties was mentioned

in the Buyer's Agreement dated 05.04.2013 which the Opposite

Party has failed to comply with. That the Complainant has been

suffering huge losses and severe mental stress, agony and

harassment due to the acts of the Opposite Party who have

miserably failed to complete the construction and handover the

 possession of the said flat in time as was assured by them.

Further, the acts of the Opposite Party amount to unfair trade

practice in making demands and receiving huge amounts from

the Complainant knowing fully well that the Opposite Party will

not be able to complete the said project and deliver possession.

3. That the contents of Para 3 of the Para-Wise Reply are admitted

to the limited extent as a matter of record that vide Clause 10 (1)

of the Buyer's Agreement dated 05.04.2013, the Complainant has

clearly represented and warranted that she has not relied upon

and was not influenced by any architect's plan, sales plan, sales

brochures, advertisements, representations, warranties,

statements or estimates of any nature whatsoever, whether

written or oral, made by the company, its selling agents/brokers

or otherwise including but not limited to any representations

relating to description or physical condition of the unit or the size

or dimensions of the unit or the rooms therein or any other

physical characteristics thereof the services to be provided to the

allottee, the estimated facilities/amenities will be made available

to the allottee, or any other data except as specifically

 represented in this agreement, but rest of the contents are denied.

It is denied that the averments and descriptions made by the

Complainant in this Paragraph are contrary to the representation

and warranties undertaken by her in the Buyer's Agreement. It is

submitted that all these descriptions/representations were made

by the Opposite Party so that the Complainant gets convinced

and books a flat in their housing project. It is unfair on part of the

Opposite Party to hide material facts from this Hon'ble

Commission and paint a completely contrary picture to the actual

reality. That the Opposite Party may be put to strict proof thereof.

4. That the contents of Para 4 of the Para-Wise Reply are admitted

and hence, need no reply.

5. That the contents of Para 5 of the Para-Wise Reply are false and

therefore denied in its entirety. It is denied that as contrary to

records that the Complainant did not make payments of

instalments from time to time as per the demands raised by the

Opposite Party. It is further denied that it is a matter of record

that the Complainant has been a defaulter in making timely

payment of instalments and several reminders have been sent to

her. It is also denied that the amount of Rs.13961179.92/-

includes credit given towards TDS certificate on different

occasions as evident from the Statement of account of the said

unit. It is submitted by the Complainant that she has been making

payments to the Opposite Party from time to time as and when

the demands for the same were raised by the Opposite Party. It is

submitted and being reiterated that she had taken home loan from

HDFC Bank and has paid almost 95% of the total cost of the said

flat i.e. till date the Complainant has paid Rs.1,39,61,179.92/-

(Rupees One Crore Thirty Nine Lakhs Sixty One Thousand One

Hundred and Seventy Nine and Ninety Two Paisa Only) and

receipts have been issued by the Opposite Party to the

Complainant for the payments made by her so the same is well

within the knowledge of the Opposite Party. Thus, the allegations

that the Complainant has been a defaulter in making timely

payments is a blatant lie as the stand taken by Opposite Party

does not hold any ground as no form of allegations taken in the

said paragraph under reply are even close to disclosing any such
willful act done by the Complainant and further, it is pertinent to

mention that the Opposite Party has concocted a false story

inorder to seek reliefs which they are not entitled to since they

have themselves breached the terms of the Agreement and

delayed possession and have acted unfairly by making demand

for payments knowing fully well that they have failed to adhere

to the construction plan thereby causing huge financial loss to the

Complainant. That the Opposite Party may be put to strict proof

thereof. Infact, as per records, the Opposite Party had itself

admitted to its laxity and had waived any interest of payments as

it had delayed the project. 6. That the contents of Paras 6 and 7 of

the Para-Wise Reply are false and vexatious and therefore denied

in its entirety. It is emphatically denied that after agreeing to the

terms of the Buyer's Agreement and importantly complying with

those terms for over six years, it is misconceived on the part of

the Complainant to raise issues citing some clauses of the

agreement. It is further denied that in any case, the obligations

undertaken by the Complainant under Clause 12 of the Buyer's

Agreement are as per the agreed terms of the contract and the
consequences agreed between the parties for default in making

timely payment stands on a reasonable consideration in as much

as the progress in construction of the entire project is primarily

dependent upon timely payment of instalments by the allottees.

Default in making payment even by single allottee adversely

affects the timelines of construction, for the entire project. It is

for this reasonable consideration that the parties had agreed to

make timely payment of instalments an essence of the contract. It

is stated that as per the agreed terms and conditions of the buyer's

agreement, delay payment shall be charged @ 24%. However, it

is denied that the same were reduced to 15% from 12.09.2016 to

12% from 01.12.2016 and finally to 10% from 01.05.2017. It is

also denied that as per Clause 14 of the Buyer's Agreement there

was no concrete promise to deliver the possession within any

certain timelines. It is denied that the Opposite Party has applied

for occupancy certificate and that the project almost completed.

It is vehemently denied that the opposite party applied for the

Occupation Certificate vide application dated 11.02.2019 and

received the Occupation Certificate on 17.10.2019. It is denied

that the time taken by the authorities for issuance of occupation

certificate was not in the hands of the opposite party and also

denied that the construction of the unit in question is already

completed and the Complainant has already been offered

possession by the Opposite Party after obtaining the requisite

Occupancy certificate. The said offer was only made post the

institution of the present proceedings. It is further denied that the

very fact that the parties had agreed for a delay compensation

clause vide Clause 16(a) in the Buyer's Agreement, it was well

within the contemplation of the parties even at the time of

entering into the contract that there could be a delay in

construction and in the advent of such an eventuality, the interest

of the allottee was by way of liquidated damages; which the

parties had agreed at the time of entering into the contract to be a

reasonable pre-estimate of damages that the allottee could suffer

in the eventuality of delay in handing over possession. That the

said delay can in now way be interpreted to be a delay of over 3

years. It is submitted that the entire contents of this paragraph

under reply are nothing but a clear attempt on the part of the
 Opposite Party to harass the Complainant and seek for remedies

which are not available to them in the present proceedings. It is

the case of the Complainant that the construction of the said flat

was never completed and no possession was offered to her by the

Opposite Party till the filing of the present proceedings.

Furthermore, it is being reiterated that "Time is the Essence"

principle is applicable to both the parties such that on one hand

the allottee makes the payment in time and on the other hand, the

developer delivers the flat in time and it is not a one sided

obligation. That the Opposite Party may be put to strict proof

thereof and the Complainant reserves her right to give her

submissions during the course of argument. That the admittance

of compensation of delay in no way can be deemed to be a

waiver for the enormous delay in handing over possession of the

residential house. The said interpretation is alien to law,

6. That the contents of Para 8 of the Para-Wise Reply are false and

vexatious and therefore denied in its entirety. It is emphatically

denied that Complainant was not regularly following up with the

Opposite Party to deliver the possession on time. It is denied that

there was no assurance of any concrete timelines of possession. It

is also denied that since the timelines were never intended by the

parties to be firm and concrete, it is misconceived on the part of

the Complainant to allege that the Opposite Party failed to

deliver the possession within the stipulated time. It is submitted

by the Complainant that the Opposite Party is making statements

which are contrary to the terms of the Buyer's Agreement dated

05.04.2013 entered into between the parties. It is the case of the

Complainant that the fact that the Complainant had no house of

her own and was therefore was in urgent need of a residential

house for residence of her family members and thus, booked a

flat was well within the knowledge of the Opposite Party. That is

why the Complainant regularly kept on following up with the

Opposite Party to deliver the possession on time as was assured

and agreed under the terms of Buyer's Agreement since the

Complainant had paid 95% of the total cost. Furthermore, the

Complainant craves leave of this Hon'ble Commission to refer to

the relevant paragraphs of the present Replication and Complaint

and the same are not being reiterated herein for the sake of
 brevity. It is shocking to note as to how the Opposite Party has

suddenly turned turtle and has completely ignored the time frame

within which it was under an obligation to fulfil its promises. It is

apposite to note that the Opposite Party has tried to wash away

its liabilities at the behest of its contractors, government

authorities etc. and is trying to portray itself to be a victim.

9. That the contents of Para 9 of the Para-Wise Reply are wrong

and misconceived and therefore denied. It is vehemently denied

that the act of the Complainant in refusing to accept possession

after receiving the offer for the same contradicts the claim of the

Complainant that she doesn't own any residential property in

NCR and was very much interested in getting possession of the

aforesaid flat for her own residence. It is further denied that such

an approach on the part of the Complainant substantiates the

stand of the Opposite Party that the Complainant had invested in

the project of the Opposite Party for making commercial gains by

way of appreciation in market price. It is admitted that taking a

loan was the decision of the Complainant herself and as clearly

agreed in the Buyer's Agreement vide Clause 22, the purchase of

the flat is not dependent on financing contingency and the

allottee will remain bound under this agreement whether or not

the allottee has been able to obtain financing for the purchase of

the said unit. That the Complainant craves leave of this Hon'ble

Commission to refer to the relevant paragraphs of the present

Replication and Complaint and the same are not being reiterated

herein for the sake of brevity. In addition to this, the Opposite

Party has himself agreed to the fact in this paragraph under reply

that the Complainant had taken home loan from HDFC Bank for

residential house in question and not for any investment purpose

and it is trite law that the Complainant cannot be made to suffer

on account of the gross deficiency in services on part of the

Opposite Party in completing the said project for the reasons best

known to them as the Complainant has paid almost 95% of the

total cost said flat. Infact, it clearly shows the ulterior motive and

nefarious design of the Opposite Party to extract money from the

innocent buyers fraudulently such as the Complainant herein and

also demonstrates the unfair trade practice and restrictive trade

practices under the ambit of Consumer Protection Act, 1986. In

 addition to the same it is now the choice of the Complainant to

choose to keep her association with the Opposite Party or not, by

its conduct it is amply clear that the Opposite Party is trying to

misrepresent the Complainant and forcing her to take possession

which she is legally entitled to reject, due to the inordinate delay

on the part of the Opposite Party. The delay which is completely

unexplained by the Opposite Party in its reply.

10.That the contents of Para 10 of the Para-Wise Reply are false and

vexatious and therefore denied. It is vehemently denied that the

allegations of gross deficiency against the Opposite Party in

providing services assured by it are as baseless. It is denied that

there has not been unreasonable delay and it is been

misconceived on the part of the Complainant to allege that the

Opposite Party has rendered itself liable for the delay caused in

completing the construction and handing over possession of the

unit. It is further denied that the Complainant has not incurred

huge losses on account of the delay for want of proof and breach

of terms of the agreement by the Opposite Party. It is specifically

denied that there has not been any delay or breach of any term of
the agreement by the Opposite Party. It is denied that the delay is

attributed to the lapses on the part of the contractor deputed

completion of the project and denied that the allegations levelled

by the Complainant of causing mental tension, stress, agony and

harassment are wrong and baseless. It is denied that the

Complainant has not been suffering for any reason attributable to

the Opposite Party. It is strongly denied as a baseless allegation

that any demand has not been made by the Opposite Party

without reaching the construction milestones. It is further denied

that the demands were raised only and after completion of the

said milestone and denied that the allegations of unfairness

against the Opposite Party are wrong and baseless. It is denied

that any act of the Opposite Party does not amount to unfair trade

practice and denied that the Opposite Party has not received any

amount from the Complainant under any false promise or

assurances. It is evident from the above that the project has been

delayed for over 3 years and the Complainant continues to pay

interest, whereas on the other hand, the opposite party is enjoying

the money received by on the pretext of completion of the project

 by 2017 and till the date of filing of this Complaint, there was no

whisper of the alleged handover. That the Complainant craves

leave of this Hon'ble Commission to refer to the relevant

paragraphs of the present Replication and the same are not being

reiterated herein for the sake of brevity. Further, the Complainant

also reserves her right to give her submissions during the course

of argument.

11. That the contents of Para 11 of the Para-Wise Reply are false

and incorrect and therefore denied. It is vehemently denied that

after receiving the offer of possession, it doesn't lie in the mouth

of the Complainant to allege that there has been false promises

due to which she doesn't wish to continue any form of association

with Opposite Party concerning the unit in question or that the

Complainant cannot be made to wait indefinitely for possession

of the premises. The said offer of possession admittedly has been

issued post the institution of the present proceedings and the

same stands rejected by the Complainant. It is admitted that the

Opposite Party is a service provider and constructs the houses of

the allottees from out of the money received from them. After
completing the construction within a reasonable time by utilizing

the money paid by the allottee, a refusal to take over possession

by the allottee solely on the ground of minor delay cannot be

legally sustained in real estate service contracts. That the said

submission cannot be accepted at the whims and fancies of the

Opposite Party, it is submitted that for a company like the

Opposite party it would be a minor delay, but for the

Complainant, a Senior citizen it is a very lengthy and an

inordinate delay. It is submitted by the Complainant that there

has not been a minor delay, infact, there has been a delay more

than the stipulated time period i.e. more than 42 months + 3

months grace period and the Opposite Party never offered the

possession to the Complainant due to which the Complainant did

not want to retain the allotment said with the Opposite Party, the

alleged farce of possession has only been manufactured post the

filing of the present complaint and to create a false narrative

before this Hon'ble Commission. Furthermore, the Complainant

craves leave of this Hon'ble Commission to refer to the relevant

 paragraphs of the present Replication and the same are not being

reiterated herein for the sake of brevity.

12. That the contents of Para 12 of the Para-Wise Reply are false

and incorrect and therefore denied. It is vehemently denied that

the ground for refusal taken by the Complainant under this

Paragraph is self-contradictory and false. It is further denied that

possession of the unit in question has already been offered to the

Complainant hence, the basis on which the present complaint has

been filed is non-existent today, the Complainant has received

the alleged offer post the filing of the present Complaint and

admittedly the said offer stands rejected. It is also denied that the

averment made by the Complainant that she withdrew her

Complaint from RERA, Haryana because the adjudication officer

is not legally permitted to award compensation, itself shows that

the Complainant is not an end user and is only a speculative

investor. It is the case of the Complainant that the entire Reply of

the Opposite Party is reiterated of the same pleading over and

over again and the Complainant craves leave of this Hon'ble

Commission to refer to the relevant paragraphs of the present

 Replication and the same are not being reiterated herein for the

sake of brevity. That it is beyond the imagination of the

Complainant that as to how does withdrawal of a complaint at a

particular forum be interpreted to mean that the Complainant is a

speculative investor. The Opposite Party is put to strict proof

thereof.

13. That the contents of Para 13 of the Para-Wise Reply are false

and incorrect and therefore denied. It is vehemently denied that

the averments made in this Paragraph clearly shows that the

present Complaint is more in the nature of a recovery proceeding

than a consumer Complaint. It is denied that there has not been

any harassment and torture to the Complainant by any act of the

Opposite Party. It is denied that the contents of legal notice dated

07.06.2019 are concocted and misconceived. It is also denied that

since possession of the unit in question has been offered to the

Complainant within a reasonable time, the Complainant is not

entitled to refund of the amount paid by her much less with any

interest as wrongly claimed by her under this Paragraph. It is

being reiterated by the Complainant that the possession was

 never offered by the Opposite Party as the project was never

completed by them. Therefore, the Complainant is entitled to

refund of the amount already paid by her for the said Flat in

question as the Complainant has already called upon the

Opposite Party to cancel the booking on account of delay and

gross deficiency in services on their part to handover the

possession as the Agreement and thus, to refund/repay the

amount paid by the Complainant for non-fulfilment of

contractual obligations. It is a matter of record that the

Complainant even issued a Legal Notice dated 07.06.2019 to the

Opposite Party but the Opposite Party has till date neither replied

to the said Notice nor has refunded back the money. That the

Opposite Party may be put to strict proof thereof.

14. That the contents of Para 14 of the Para-Wise Reply are alleged

as wrong and therefore denied. It is vehemently denied that the

Opposite party has already offered possession of the unit to the

Complainant within a reasonable time. It is further denied that it

is misconceived and baseless on the part of the Complainant to

allege that any act on the part of the Opposite Party tantamount
 to deficiency in service and unfair trade practice. That the

Complainant craves leave of this Hon'ble Commission to refer to

the relevant paragraphs of the present Replication and the same

are not being reiterated herein for the sake of brevity. Further, the

Complainant also reserves her right to give her submissions

during the course of argument.

15. That the contents of Para 15 of the Para-Wise Reply are alleged

as wrong and therefore denied. It is emphatically denied that the

opposite party has fulfilled its contractual obligations or has

complied with the promises/assurances given by it. It is further

denied that any act of the opposite party does not tantamount to

deficiency in service as stipulated under Section 2 (c) of the

Consumer Protection Act, 1986. That the Opposite Party is

purposely deposing falsely and is just abusing the process of law

by concealing the true and actual facts. That the Opposite Party

may be put to strict proof thereof and the Complainant also

craves leave of this Hon'ble Commission to refer to the relevant

paragraphs of the present Replication and the same are not being

reiterated herein for the sake of brevity.

16. That the contents of Para 16 of the Para-Wise Reply are

absolutely vague, irrelevant, baseless and therefore denied. It is

emphatically denied that in view of the averments made by the

opposite Party in the forgoing Paragraphs including those under

the "Preliminary Submissions" and Preliminary Objections, the

Complainant is not entitled to any adjudication and consequent

order by this Hon'ble Commission for compensation. It is the

case of the Complainant that the submissions made by the

Opposite Party are devoid of any merit and are liable to be

rejected. Further, the Complainant craves leave of this Hon'ble

Commission to refer to the contents of the relevant paragraphs of

the present Replication and the same are not being reiterated

herein for the sake of brevity.

17. That the contents of Para 17 of the Para-Wise Reply are

absolutely vague, irrelevant, baseless and therefore denied. It is

vehemently denied that in view of the averments made by the

Complainant herself in the Complaint, the Complaint is not

within limitation. Further, denied that in view of notification of

the Consumer Protection Act, 2019, and pecuniary jurisdiction

being a procedural law having retrospective application, this

Hon'ble Commission lacks pecuniary jurisdiction to try and

entertain the present Complaint. Without prejudice, it is further

denied that given that the possession of the Unit has already been

offered, the subject matter of dispute narrows down only to

compensation and by no stretch of calculation, it can go beyond

Rs. 1 Crore, hence this Hon'ble Commission has no pecuniary

jurisdiction to try Complaint. It is also denied that the quantum

calculated by the Complainant in this Paragraph is without any

basis. It is submitted by the Complainant that the quantum

calculated by the Complainant is the actual amount that she has

already paid to the Opposite Party who failed to handover the

possession in time and therefore, the Complainant is very well

entitled to the refund of same to the tune of Rs.1,39,61,179.92/-

(Rupees One Crore Thirty Nine Lakhs Sixty One Thousand One

Hundred and Seventy Nine and Ninety Two Paisa Only) for

which the Opposite Party had themselves issued receipts for the

payments received by them. It is further submitted that the

Opposite Party by shifting the onus on the Complainant, is just

 trying shy away from its admitted liabilities and obligations and

to cover up its misdeeds regarding the gross deficiency in

services. That it is an admitted fact that the Complainant is liable

to refund of the amount already paid by her. That the Opposite

Party may be put to strict proof thereof. In addition to the same,

the present complaint was filed prior to the implementation of the

said amendment, thus this Hon'ble Commission has ample power

to adjudicate the issues.

18. That the contents of Para 18 of the Para-Wise Reply are alleged

as wrong and therefore denied. It is vehemently denied that there

is no cause of action in favour of the Complainant and against the

Opposite Party on any date. It is denied that the cause of action is

not continuing and subsisting one. It is further denied that the

possession of the unit has already been offered to the

Complainant, hence there is no cause or action in favour of the

Complainant and against the Opposite Party. It is submitted that

there is a valid and genuine cause of action in favour of the

Complainant and against the Opposite Party/ Opposite Party

since the Opposite Party has committed breach of the terms of

the Agreement and failed to deliver the possession of the flat in

time as was promised and assured by them. That the Opposite

Party is as per its own convenience trying to ascertain that a

delay of over 3 years is only a meagre delay and that the same

should be condoned, that the Opposite Party fails to appreciate

the fact that the said delay is not of a certain number of days but

of a several years hence the interpretation of the Opposite party is

untenable and without any merit and is liable to be rejected

outrightly. The Opposite Party has raised frivolous and baseless

defence and the same is liable to be rejected being devoid of

merit. The Opposite Party has not come to the Hon'ble

Commission with clean hands and tried to portray as if the

Complainant has violated the terms of the agreement, whereas it

is an admitted fact that the Opposite Party has miserably failed to

fulfill its obligations as per the Agreement executed between the

parties and that now in light of the said violations, the Opposite

Party is not liable to any relief. That the Opposite Party may be

put to strict proof thereof since the Complainant has honoured

her part of the commitment and made the payments on time

 without any delay, whereas the Opposite Party has not fulfilled

his obligations and has not lived upto its promises and has just

expropriated the Complainant of her monies. That the Opposite

Party is liable to refund the entire amount received along with

interest. That the Complainant cannot be forced to take

possession of a delayed project at the instance of the Opposite

Party.

19. That the contents of Para 19of the Para-Wise Reply are false and

vexatious and therefore denied. It is not in the knowledge of the

Complainant that the Opposite Party has shifted its offices to

306-308, Square One, C-2, District Centre, Saket, New Delhi -

110017. That the Opposite Party may be put to strict proof

thereof.

REPLY TO PRAYER CLAUSE:

The Opposite Party has reiterated the pleadings over and over again

without giving justification for such denial and has failed to counter

the contents of the Complaint filed by the Complainant. The Prayer

clause of the Complainant survives leaving no room for Opposite

Party to deny the same.

COMPLAINANT

FILED THROUGH

AB & Co.

Law Offices

Anubhav Bhasin/ Bhuvanesh Sehgal

(Counsel for Complainant)

C-17, LGF, Friends Colony (East),

New Delhi-110065

Ph. No. 9971090069/9810149006

New Delhi