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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Ravindra Bana, Advocate, for the complainants and Mr. Sudeep Singh, Advocate, for the opposite party.
A.K. Sanghi and Mrs.Sneh Sanghi have filed above complaint for directing the opposite party to (i) refund Rs.12163578/-, with interest @24% per annum, from date of deposit till the date of refund; (ii) pay Rs.500000/-, as punitive damages; (iii) pay litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstance of the case.
The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its unit to the prospective buyers. The opposite party launched a group housing project in the name of “Prateek Stylome” at Plot GH-04/B, Sector-45, Noida, in the year 2011 and made wide publicity of its facilities and amenities. The complainants booked Unit No. A-1601, Block A, super area 1845 sq.ft., basic sale price of Rs. 10101375/- in the project “Prateek Stylome” and deposited booking amount on 11.09.2012. The opposite party, vide allotment Letter dated 16.09.2012, allotted aforesaid unit to the complainants. Booking application and allotment letter contained payment plan as “construction link payment plan”. The opposite party gave extension of 45 days for payment of instalment payable on third floor after 120 days. Clause-23 of the allotment letter provides that possession would be handed over till April, 2015 with grace period of 3 months. As per demand of the opposite party, the complainants deposited total Rs.12163578/- up to 09.04.2016 but the opposite party could not complete construction and offer possession. Under clause-11 of allotment letter, the opposite party is charging interest @18% per annum, for 15 days delay in payment of instalment but they are not providing delay compensation at the same rate. Under Section 2(za) of Real Estate (Regulation and Development) Act, 2016, the complainants are also entitled for interest at same rate on which, the opposite party is charging. Clauses-1, 4(i), 4(ii), 4(iii), 9, 10, 11, 13, 14, 16, 20.3, 20.4, 20.9, 20.10, 20.12, 20.13, 20.17, 20.21, 20.23, 21.1, 23(iii), 23(iv), 23(v), 23(vi), 23(ix) and 26.6 of the allotment letter are contrary to Sections 10, 14, 17, 18, 19, 23, 35, 53, 54, 55,73 and 75 of the Contract Act, 1872. There were number of shortcoming and deficiencies in construction, which were pointed out by the complainants to the opposite party time to time including vide letter dated 11.12.2013. The opposite party raised final demand dated 08.03.2016, in which delay compensation @Rs.5/- per sq.ft. per month on super area, for a period of six months was provided. The opposite party illegally charged interest of Rs.14000/- although all instalments were paid on time. The opposite party has illegally charged service tax. The opposite party put a condition for taking possession only after giving “No Objection”. The opposite party has not obtained “completion certificate”, “Fire Safety Certificate” Water, Sewer, Electricity connections certificate etc. The complainants vide email dated 12.04.2017, inquired about above certificates, which was not clearly replied by the opposite party. The complainants, through email dated 16.04.2017, demanded for refund their money with interest, which was not responded. Then the complainant gave legal notice dated 20.07.2017, for refund with interest, which was not responded. Then this complaint was filed on 06.11.2017, alleging deficiency in service.
The opposite party filed its written reply on 09.02.2018 and contested the matter. The facts relating to the project, allotment of the flat to the complainants, vide Allotment Letter dated 16.09.2012 and payments made by them, have not been disputed. The opposite party stated that construction of the project was completed and the opposite party applied for issue of “completion/occupation certificate” on 18.06.2015. Statutory authority made inspection of the project on 08.09.2015 “Occupation certificate” was issued on 20.05.2016. All the basic amenities i.e. electricity supply, water supply, garden, open area, parking area, security arrangement, domestic garbage collection etc. were functional. In anticipation of “occupation certificate”, the opposite party, vide letter dated 08.03.2016, raised final demand and asked the complainants to complete documentations for possession but the complainants did not turn up. The construction of the project was delayed due to farmer’s agitations during 2011-2012, in relation to acquisition of the land. Thereafter, National Green Tribunal, vide order dated 28.10.2013, stopped constructions within a radius of 10 KM from Okhla Bird Sanctuary, which continued till notification of Eco Sensitive Zone by State of U.P. dated 19.08.2015. Statutory authority has also delayed issue of “occupation certificate”. These were force majeure reasons and the opposite party is entitled for extension of period. Out of 470 residential units in the project, 400 home buyers have taken possession and are residing in the project. Then the opposite party, vide email dated 13.04.2017, informed the complainants about issuance of “occupancy certificate”. After obtaining “occupation certificate” and offer of possession, the complainants were under obligation to take possession, after completing formality and paying balance amount and not entitled for refund. The opposite party denied about deficiency in service. The complaint is liable to be dismissed.
The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of A.K. Sanghi and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Sunil Kumar Mittal and documents. Both the parties have filed their written arguments.
I have considered the arguments of the parties and examined the record. Clause-23 of the allotment letter provides that possession would be handed over till April, 2015 with grace period of 3 months. As such due date of possession was July, 2015. The opposite party has stated that the construction was completed and they applied for issue of “occupation certificate” on 18.06.2015. Statutory authority made inspection of the project on 08.09.2015 “Occupation certificate” was issued on 20.05.2016. In anticipation of “occupation certificate”, the opposite party, vide letter dated 08.03.2016, raised final demand and asked the complainants to complete documentations for possession but the complainants did not turn up. The construction of the project was delayed due to farmer’s agitations during 2011-2012, in relation to acquisition of the land. Thereafter, National Green Tribunal, vide order dated 28.10.2013, stopped constructions within a radius of 10 KM from Okhla Bird Sanctuary, which continued till notification of Eco Sensitive Zone by State of U.P. dated 19.08.2015. Statutory authority has also delayed issue of “occupation certificate”. These were force majeure reasons and the opposite party is entitled for extension of period under clause-23 of the agreement. There was no unreasonable delay. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in civil construction work, time cannot be essence of the contract. Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 and this Commission in Parmod Kumar Madan Vs. DLF Ltd., 2021 SCC OnLine NCDRC 924, held that if after obtaining “occupation certificate” the builder offers possession, then the home buyer is under contractual obligation to take possession.
The complainants, vide email dated 19.01.2016 (Annexure-P-14), pointed out defect in entry gate of master bedroom, which was assured to be removed. The complainants deposited the amounts as demanded vide letter dated 08.03.2016 on 09.04.2016 (except Rs.14040/- demanded as interest for late payment). But the defect was not removed and for which the complainants again made a complaint through email dated 28.08.2016. The opposite party, vide email dated 26.10.2016, asked for Bank NOC although the complainants had not taken loan from the bank. The opposite party, vide email dated 16.11.2016 (Annexure-P-27), informed that their flat would be ready very shortly. The opposite party never communicated to the complainants that their flats was ready for possession, although final demand was deposited on 09.04.2016 and all the required documents were submitted nor offered possession. The complainants vide legal notice dated 20.07.2017, demanded for refund of their amount. From 09.04.2016 to 20.07.2017, the opposite party has failed offer possession to the complainants after removing defects in the flat. There is no justification for the opposite party for this unreasonable delay. In the circumstance, the complainants are entitled for refund of their amount with interest. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.
ORDER
ln view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire money deposited by the complainants with interest @9% per annum, from the date of respective deposit till the date of refund, within two months from the date of this judgment.