The present Complaint has been filed by Arun Gupta and Savita Gupta (hereinafter referred to as the Complainants) under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short the) against M/s. Pioneer Urban Land & Infrastructure Pvt. Ltd. (hereinafter referred to as the Opposite Party) seeking the following relief:

a. Pass an order for the recovery/ refund of the amount of Rs.5,67,47,402/- (the instalment actually paid by the complainants) in favour of the complainant and against the opposite party. -1- b. Direct the opposite party to pay an amount of Rs.1,07,36,216/- i.e. loss caused to the complainant till April 01, 2017 owing to deficiency in service of the opposite party. c. Pass an order thereby declaring the Clause 11.5 (ii) of the Apartment Buyers Agreement dated 22.11.2012 as illegal, null and void. d. Pass an order thereby declaring the Clause 10.6 and Clause 20 and Clause 11.5 (iv) and clause 19.2, in so far as the same prescribe rate of interest of 6% per annum and 9% per annum respectively (on the refunds to be made by opposite party) as null and void and consequently the opposite party be directed to refund the amounts (in the aforesaid clauses) along with interest @ 18% per annum. e. Award pendentelite and future interest @ 18% per annum on the aforesaid amounts claimed in prayer (a) and (b), from the date the payments were made by the complainants till the time the opposite party pays the said payment to the complainants. f. Award compensation in favour of the complainants and against the opposite party to the tune of Rs. 10 lakhs on account of the mental harassment and grave agony caused to the complainants by the acts of the opposite party. g. Award cost of litigation h. Pass such other or further order (s) this Honble Commission may deem fit and proper in the facts and circumstances of the present case.

2. The brief facts as set out in the Complaint are that on 11.09.2012, the Complainants booked an Apartment No. B-201, II Floor, Tower-B, with a Super Area of 5514 sq. ft. in the Project nd Araya in Village Ghata, Sector -62, Gold Course Extension Road, Gurgaon, Haryana being developed by the Opposite Party and paid an amount of 40,00,000/-. On 22.11.2012, the Apartment Buyers Agreement was executed between the Parties for a total sale consideration of 6,07,93,063/- and as per Agreement the possession of the Apartment was to be delivered within 39 months from the date of excavation with a grace period of 6 months. It is averred that the excavation process for construction was commenced on 09.01.2013. It is pleaded that some of the Clauses of the Agreement are one-sided in favour of the Developer and the Complainants were not allowed to make any correction or modification in the Agreement.

3. It is averred that the Complainants have obtained Home Loan from ICICI Bank and are paying EMI with interest of 9.3% p.a. It is further averred that as per the demands made by the Opposite Party from time to time the Complainants have paid an amount of 5,67,47,402/- and despite having received more than 90% of the total sale consideration, the Opposite Party has failed to complete the construction of the Project and deliver the possession of the Apartment within the stipulated time. The Complainants got issued a Legal Notice dated 28.12.2016 to the Opposite Party, which was not responded by the Opposite Party. Being aggrieved, the Complainants have approached this Commission seeking the aforenoted Reliefs.

4. The Complaint was contested by the Opposite Party by filing Written Version. It is pleaded by the Opposite Party that the Complainants are not Consumers as defined under Section 2 (d) of theas they had booked the Apartment for commercial gain and not for their personal use; that the time period of 45 months for handing over of possession was only a tentative; that the Complainants have not adhered to the Payment Schedule and defaulted in making payments and that the Complainants were silent for almost five years about the Clauses in the Apartment Buyers Agreement and now they cannot say that Clauses in the Agreement are unfair and one-sided.

5. It is further submitted that delivery of possession was subject to . Force Majeure conditions It has been stated that there were several events such as delay in payments by many Customers, dispute with Contractors, water shortage, shortage of raw material, delay in approvals by the State Government, Reservation Agitation, NGT Order and Demonetization, which were beyond the control of the Opposite Party and led to the delay in completion of overall construction of the Project. It is averred that there is no Deficiency of Service or Unfair Trade Practice on their behalf and sought dismissal of Complaint with cost.

6. Heard the learned Counsel for the Parties and perused the material on Record.

7. The learned Counsel for the Complainants in support of his case has placed before us a decision of the Honble Supreme Court in

Pioneer Urban Land & Infrastructure Ltd. Vs. which relates to the same project, whereby the order Govindan Raghavan II (2019) CPJ 34 (SC) [LQ/SC/2019/611]

, passed by this Commission was upheld by the Honble Supreme Court.

8. We find that the defence taken by the Opposite Party in its Written Version have already been dealt in detail by this Commission vide its decision dated 23.10.2018 in

Consumer Complaint No. 238 of 2017 (Geetu Gidwani Verma Vs. Pioneer Urban Land and Infrastructure , wherein the Opposite Party was directed to refund the deposited amount with interest @ Ltd.)

10.7% p.a. together with litigation cost of 25,000/-, which has been upheld by the Honble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. (Supra)

9. Learned Counsel for the Opposite Party does not dispute that the issue involved in the present Complaint and is similar. Pioneer Urban Land & Infrastructure Ltd. (Supra)

10. The learned Counsel for the Complainants states that to avoid further litigation, the Complainants are restricting their claim to the refund of the deposited amount alongwith compensation in the form of interest @ 10% p.a.

11. Accordingly, following the decision of the Honble Supreme Court in Pioneer Urban , we partly allow the present Complaint and direct the Land & Infrastructure Ltd. (Supra) Opposite Party to refund the amount deposited with compensation @ 10% p.a. from the respective dates of deposit till the date of realisation together with litigation cost of 25,000/-. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which the amount shall attract compensation @ 12% p.a. for the same period. ......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER