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Judgment
Heard Mr. Latif Pirani, Advocate, for the complainants and Mr. Ashwani Kumar, Advocate, the opposite parties.
Mrs.Chandra Satra and Mr. Jigar Satra have filed above complaint, for directing the opposite parties to (i) refund Rs.8199365/- with interest @18% per annum from the date of deposit till the date of refund; (ii) pay Rs.1500000/-, as compensation for mental agony and harassment; (iii) pay Rs.500000/-, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.
The complainants stated that opposite party-1 was a Limited Liability Partnership Firm registered under Limited Liability Partnership Act, 2008 and opposite parties-2 and 3 were its partners. Opposite Party-4 and 5 were working as real estate brokers. Opposite party-1 was engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. Opposite party-1 launched a group housing project, in the name of “Crescent Bay”, at Cadastral Survey No.437 part, 440 part, 645 part, 646 part, 651 part and 854 part of Parel-Sewari Division, in ‘F’ South Ward, Mumbai, in the year 2015 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite parties, the complainants booked a flat through opposite party-4 and 5 and deposited booking amount on 7th & 8th June, 2015. The booking application form contained payment plan, as “Construction Linked Payment Plan” under which 19% of total sale consideration had to be paid as “earnest money” till 21.07.2015 and other instalments were payable on start of “excavation” and on other stages of construction. The complainants deposited earnest money till 15.09.2015 and total Rs.8199365/- upto 19.07.2017. Opposite party-1, through email dated 07.03.2017, demanded instalment of “start of excavation”. On visiting the site, the complainants found that the opposite parties had not started the construction. The complainants through email dated 22.11.2017, inquired about period of completion of the project. The opposite party, through email dated 18.12.2017, did not give period of completion rather assured that interest @7.5% per annum on the deposit would be paid. Initially opposite party-1 assured for delivery of possession within 42 months of the booking. After constitution of Maharashtra Real Estate Regulatory Authority, opposite party-1 got registered project giving date of possession as August, 2021. The complainants gave a legal notice dated 19.10.2018 to the opposite parties for refund of money deposited by them along with interest. In spite of service of legal notice, opposite party-1 has failed to refund the money. Then this complaint was filed on 21.01.2019.
The opposite parties filed its written reply and contested the matter. The opposite parties did not dispute the booking of the flat and deposits made by the complainants. The opposite parties have stated that booking form does not contain any clause giving any date for completion of the project. The complainants have pre-booked Apartment No.1803 in Tower-3 of the project. After deposit of earnest money, the complainants did not come for execution of the agreement. The opposite parties wrote various letters and e-mails to the complainants for depositing the instalments. The letters were written on 22.11.2017 and 05.12.2017, but the complainants did not turn up for deposit of any amount. The project was registered with Maharashtra Real Estate Regulatory Authority, on 10.08.2017, giving completion period as 31.08.2021 and revised date as 31.03.2022. The opposite parties are proceeding with the construction with full spring.
The complainants filed Affidavit of Evidence of Chandra Kantilal Satra. The opposite parties filed Affidavit of Evidence of Rajeevan Nair, in which, they have stated that the period of completion was subsequently extended up to 31.03.2022. Despite Covid-19, the opposite parties completed construction of Tower-3 and obtained “occupation certificate” on 31.01.2022. The opposite party, through email dated 24.05.2022, intimated the complainants and offered for possession. The complainants have filed written synopsis.
The counsel for the opposite parties submits that the complainants were defaulters. After deposit of earnest money, they did not deposit any amount of instalment, although various letters were written to them, therefore, they are not entitled to any relief. The project was completed and “occupation certificate” was obtained on 30.01.2022 and it is ready for possession. As the complainants have not paid the instalments nor entered into the agreement, they are not entitled for any relief.
We have considered the arguments of the counsel for the parties and examined the record. Although booking application form does not mention any time for delivery of possession but reasonable time of three years, may be inferred. The booking application is dated 21.01.2015, as admitted. The project was not started within three years of the booking. The complainants have stated that construction was not started at the time of email dated 07.03.2017. There is nothing on record, on behalf of the opposite parties to prove that construction was started till 20.01.2018. The opposite parties never exercised their right to cancel booking/allotment and forfeit the earnest money on the ground of defaulter till issue of notice dated 19.10.2018 for refund of the amount. Therefore the opposite parties have failed to prove that the complainants were defaulters in payment of the instalment. The complainants are entitled for refund of their money as it is well settled that a home buyer cannot be made to wait for possession for unlimited period. The counsel for the complainants argued that interest @12% per annum be provided. However, in view of judgment of Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 LiveLaw (SC 352, we are awarding interest @9% per annum.
ORDER
In the result, the complaint is partly allowed. The opposite parties are directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.