Arup Sinha vs Ireo Grace Realtech Private Limited & 4 Ors

Deepa Sharma, Presiding Member

The brief facts of the case are that the complainant had booked a flat in the project namely, ‘The Corridors’ being developed by the opposite party at Sector 67-A, Gurgaon vide application dated 22.03.2013. Flat No. 401 on the 04th Floor of Tower A-2 was allotted to the complainant. The total cost of the flat was Rs.1,80,61,411/-. The contention of the complainant is that he had been regularly making the payment towards the consideration amount to the opposite party and paid total sum of Rs.1,53,28,263/-. The contention of the complainant is that as per the agreement, the possession of the subject flat was to be given within 42 months from the date of approval of the building plans. It is submitted that construction of the subject flat is not yet complete and no occupancy certificate has so far been obtained. The complainant has sought refund of this deposited amount along with interest @ 18% p.a. from the date of payment till realization and also has claimed Rs.5.00 lacs towards mental agony and harassment, Rs.1.00 lacs towards cost of litigation and Rs.10.00 lacs towards compensation for deficiency in service and unfair trade practice.

The claim is contested by the Opposite Party on several counts. Opposite Party has given several reasons for their inability to complete the project within time and hand over the possession of the subject flat to the complainant.

Parties led their evidences. We have heard the arguments of the learned counsel for the parties. During the course of arguments, learned counsel for the complainant submits that in terms of order of the Hon’ble Supreme Court in Ireo Grace Relatech Pvt. Ltd., Vs Abhishek Khanna and Others (2021) 3 SCC 241, since the subject property falls in Tower A-2 and therefore, falls in ‘Chart-B’ as chalked out by the Hon’ble Supreme Court in the said case, he requests that similar directions as issued by the Hon’ble Supreme Court in Abhishek Khanna’s case be also issued.

Learned counsel for the Opposite Party does not dispute to the submissions of the learned counsel for the complainant and does not deny that this case is a covered case covered by the order of the Hon’ble Supreme Court in case of Abhishek Khanna.

We have given our thoughtful consideration to the submissions of the learned counsel for the parties and have perused the order of Hon’ble Supreme Court in the case of Abhishek Khanna. The subject flat falls in Tower A-2, which falls in Chart – B as chalked out by the Hon’ble Supreme Court in Abhishek Khanna’s case.

The Hon’ble Supreme Court has discussed at length whether the period of handing over the possession is to be calculated w.e.f. the date of issue of fire NOC or from date of sanction of building plans to calculate the due date of offer of possession. The relevant paragraphs are as under:

“25.9. The 42 months’ period in Clause 13.3 of the Agreement for handing over possession of the apartments would be required to be computed from the date on which fire NOC was issued, and not from the date of the building plans being sanctioned.

25.11 On 27-11-2014, the Director, Haryana Fire Service granted approval to the Fire Fighting Scheme subject to the conditions mentioned therein. The computation of the period for handing over possession would be computed from this date. The commitment period of 42 months plus the grace period of 6 months from 27-11-2014 would be 27-11-2018, as being the relevant date for offer of possession. The aforesaid chronology for obtaining fire NOC would indicate a delay of approximately 7 months in obtaining the fire NOC by the developer.”

The Hon’ble Supreme Court has also discussed at length in its judgment the entitlement of those allottees who had not so far been offered possession and the construction of the towers in which their flats fall, has either been not started or not completed. The Hon’ble Supreme Court has held as under :

“47. Insofar as the allottees in Chart B are concerned, they have paid part consideration, in most cases up to the 4th instalment till 2017, when they found that there was no progress being made in respect of the Towers in which the apartments had been allotted to them. It is an admitted position that Occupation Certificate for Towers A1, A2, A3, B7, C9 and C11, in which the allotments have been made for this category has not been issued by the Municipal Corporation. The apartments have not been ready for allotment even as on 30.06.2020, as per the date fixed before the RERA Authority.

The allottees submitted that they were facing great hardship since they had obtained loans from Banks for purchasing these apartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they were constrained to file consumer complaints before the National Commission, and then discontinued payment of further instalments.

The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks. Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them.

We are cognizant of the prevailing market conditions as a result of Covid–19 Pandemic, which have greatly impacted the construction industry. In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fairplay that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount. The refund will be paid within a period of three months from the date of this judgment. If there is any further delay, the Developer will be liable to pay default interest @ 12% S.I. p.a.”

This case is squarely covered under the above order of the Hon’ble Supreme Court relating to Chart-B allottees. We accordingly issue the same directions as had been given by the Hon’ble Supreme Court in the Abhishek Khanna’s case. We accordingly issue the following directions:

The opposite party is directed to refund the entire deposited amount deposited by the complainant along with interest @ 9% p.a. with effect from 27.11.2018 till the date of payment of entire amount. The refund shall be paid within 3 months from the date of this order. If there is any further delay, the opposite party shall be liable to pay a default interest @ 12% S.I.p.a.

With these directions, the consumer complaint stands disposed of.