Ankita Dabas vs M/s Ireo Grace Realtech Pvt. Ltd.

Mr. Justice A.P. Sahi, President

This is a claim for refund with a prayer to pay entire consideration amount that was tendered to the opposite party along with interest and other ancillary reliefs contained in the prayer clause.

The facts ono which the case been contested is with regard to rate of interest and the date from which the interest would start running till the date of actual payment as well as ancillary claims.

Learned counsel for the Complainant has relied on the judgment of a learned single member of this Commission in “Rakesh Gupta & Anr. Vs. Ireo Grace Realtech Pvt. Ltd., CC/11/2022, dated 23.08.2023” in respect of the same project “The Corridors”. It is urged that the said claim was allowed after taking into consideration a judgment of a three judge bench of the Apex Court in the case of “Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., (2021) 3 SCC 241”

The undisputed facts are that an allotment letter was issued on 12.08.2013, wherein the consideration of Rs.1,49,59,454.27 was indicated.

The builder buyer agreement was executed on 22.11.2013 and the possession was to be handed over within 42 months from the date of execution of the agreement as has been stated by the complainant in paragraph 7 of the complaint. It is urged that all payments had been made but in spite of passage of more than six years, the possession was not offered and there was a breach of the agreement. The complainant had to undertake the facility of loan from HDFC Bank, but the opposite party clearly defaulted resulting in deficiency of service and also unfair trade practice as the opposite party made unlawful gain at the cost of the complainant. Ultimately, in the year 2019 notice was issued to the opposite party for claiming refund and on refusal the present complaint was filed.

This issue has been dealt with in a large number of cases with regard to the same builder as is evident from the judgments cited at the bar.

However, learned counsel for the opposite party cited the judgment of the Apex Court in the case of “Tarun Kumar & Anr. Vs. M/s. Ireo Grace Realtech Pvt. Ltd., Civil Appeal D. No (s). 35448/2022 dated 27.03.2023” that in turn relies on the judgment delivered by the Apex Court in the case of “Piya Puri & Anr. Vs. M/s. Ireo Grace Realtech Pvt. Ltd., Civil Appeal No. 1438/2023, dated 24.02.2023”. the said judgment in the case of Piya Puri (Supra) is extracted hereinunder:

“Delay condoned.

The appellants are home-buyers and the respondent is Builder-cum-Developer.

The respondent launched a group housing project “The Corridors” in Sector 67A, Gurgaon.

The appellants applied for allotment, and Flat No.802 on the 8th Floor of Tower `C-8’ was allotted to them. The appellants have been paying the due installments regularly, and till the end of 2018, they had paid a sum of Rs.1,62,59,132.41/-out of the total sale consideration of Rs.1,63,86,121.27/¬. As the Respondent-Builder-cum-Developer failed to complete the project on time and to handover the possession of the allotted flat, the appellants filed a Consumer Complaint No.CC/2569/18 before the National Consumer Disputes Redressal Commission, New Delhi, claiming, inter alia:-

(i) refund of the amount of Rs.1,62,59,132.41/-;

(ii) compensation to the tune of Rs.5,00,000/- for mental and financial harassment;

(iii) the litigation costs.

The National Consumer Disputes Redressal Commission, New Delhi (in short “Commission”) considered the complaint, heard the parties and having found that there is a deficiency in service rendered by the respondent as there was an inordinate delay in completion of the project and handing over the possession of the flat, the Commission allowed the appellants’ claim to the extent that the entire amount deposited by them has been ordered to be refunded along with interest at the rate of 9% p.a.

The appellants are, however, still dissatisfied, as according to them, some compensation for mental and financial harassment, etc., ought to have been awarded by the National Commission. They also claim a higher rate of interest.

We have considered the submissions made by learned counsel appearing on behalf of the appellants.

It appears to us that the view taken by the National Commission is fair, just, and equitable. It is also in conformity with the dictum of a three-Judge Bench of this Court in “M/s. Ireo Grace Realtech Pvt. Limited vs. Abhishek Khanna and Ors.” (2021) 3 SCC 241.

For the reasons afore-stated, we do not find any ground to interfere with the impugned Order passed by the National Commission.

The Appeal is, accordingly, dismissed.

At this stage, it is pointed out that the execution proceedings are pending before the National Commission.

We have no reason to doubt that those proceedings will be carried-out expeditiously so that the appellants are able to get the actual benefit of the Order passed in their favour by the National Commission.”

The order dated passed in Tarun Kumar & Anr.(Supra) is extracted hereinunder:

“1. Heard learned counsel for the appellants and carefully perused the material placed on record.

Delay condoned.

In view of order dated 24.02.2023, passed by this Court in C.A.No. 1438/2023 @ D.No. 35466/2022 – Piya Puri & Anr. Vs. M/s Ireo Grace Realtch Pvt. Ltd., we are not inclined to entertain the instant appeal on merits. The same is, accordingly, dismissed for the reasons assigned in the above-mentioned order. ”

From a perusal of all the judgments cited at the bar it is evident that interest at the rate of 9% per annum has been awarded on the amount that has been deposited by the complainant but in the decision cited by the learned counsel for the opposite party in case of Piya Puri (Supra), and Tarun Kumar (Supra), the relief sought for award of compensation at higher rate of interest was declined.

Accordingly this complaint is also allowed on the same terms with a direction to the opposite party to refund the entire principal amount claimed by the complainant, which is not disputed, together with interest at the rate of 9% per annum with effect from 27.11.2018 till actual payment. Rs.1,00,000/- is awarded as mental and financial harassments. Litigation cost of Rs.50,000/- is also awarded. The Order to be complied with within three months from today. In the event of default, the rate of interest shall stands enhanced to 12% per annum.