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Judgment
Heard counsel for the complainant. Inspite of service of notice, nobody appears for the opposite parties and the opposite parties were proceeded ex-parte on 28.03.2019.
The above complaint has been filed for directing the opposite party to refund principal amount of Rs. 27258575/- with interest of Rs.18930844.79/- and pay damages of Rs.10/- lacs, for mental agony and harassment, cost of Rs.1 lac and any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that Homestead Infrastructure Development Pvt. Ltd. (opposite party-1) and Golden Peacock Residence Pvt. Ltd. (opposite party-2) were companies, registered under the Companies Act, 1956. Opposite party-2 was a subsidiary company of opposite party-1. The opposite parties were engaged in the business of development and construction of group housing project. In the year 2012, the opposite parties launched a group housing project, in the name of “Michael Schumacher World Tower”, and made wide publicity of its facilities and amenities. The complainant was in need of a residence and applied for a flat on 26.06.2012 and deposited the booking amount. The opposite parties issued allotment letter dated 09.04.2013 allotting Unit no. 601 admeasuring 5370 sq. ft. to the complainant in the aforesaid project. Later on, opposite party-2 executed Flat Buyer’s Agreement dated 28.10.2013 in respect of the aforesaid Unit no. 601 admeasuring 5370 sq. ft. for total sale consideration of Rs.53251640/-. The payment plan was construction linked payment plan. Clause 12 of the Agreement provides 36 months from the date of execution of the Flat Buyer’s Agreement as period of handing over possession with grace period of six months. The complainant deposited the following instalments as per the demand of the opposite parties and total amount of Rs.27258575/- has been deposited till 22.11.2014.
S. No.
Date of payment
Amount of instalment (in Rs.)
Total days (as
on Nov 15,
2017)
Simple interest @ 18% annual
Total amount
of interest (in Rs.)
1.
26.06.2012
1875000/-
1968 days
337500/-
1819726.03/-
2.
21.08.2012
625000/-
1912 days
112500/-
589315.07/-
3.
04.10.2012
4500000/-
1868 days
810000/-
4145424.66/-
4.
31.10.2013
1000000/-
1476 days
180000/-
727890.41/-
5.
04.11.2013
6913729/-
1472 days
1244471.22/-
5018799/-
6.
22.11.2014
12344846/-
1089 days
2222072.28/-
6629689.62/-
27258575/-
18930844.79/-
The complainant visited the site on 25.03.2015 but found that there was insufficient construction on the spot and the construction was not up to the stage of the amount realized by the complainant. As per the Flat Buyers Agreement, 36 months period expired on 28.10.2016 and six months grace period expired on 28.04.2017 but the opposite parties were not in a position to complete the project or offer possession. The complainant gave a legal notice on 29.08.2017 for refund of his amount along with interest but the notice was refused by the opposite parties. Hence, this complaint has been filed.
In the complaint, notices were issued to the opposite parties, vide order dated 15.12.2017. The office has submitted report that notices were returned back with the remarks ‘refused and left’. Thereafter, again, notices were issued afresh to the opposite parties and the office has submitted report that the opposite parties have refused the notice. Thereafter, the complainant was permitted to make publication of the notice by order dated 01.10.2018 and the notice was also published but the opposite parties did not turn up and therefore, they were proceeded ex-parte vide order dated 28.03.2019. The complainant filed Affidavit of Evidence of Gajendra Agarwal, complainant and proved the facts stated in the complaint.
We have considered the arguments of the counsel for the complainant. As per the agreement, due date of possession expired on 28.10.2016 and grace period has also expired on 28.04.2017. The mode of payment was construction linked payment plan and as per demand of the opposite parties, the complainant deposited amount of Rs.27258575/- till 22.11.2014. Thereafter, neither the opposite parties have proceeded with the construction nor any demand has been raised. Finding that the opposite parties had stopped the construction, the complainant issued a legal notice dated 29.08.2017 and demanded for refund of his money along with interest but the notice was not accepted by the opposite party. It is well settled that a home buyer cannot be made to wait for possession for an unlimited period.
ORDER
In the result, the complaint is partly allowed. The opposite parties are directed to refund the entire amount deposited by the complainant along with interest @9% per annum from the date of respective deposit till the date of refund, individually or jointly, within a period of two months from the day of producing certified copies of this judgment before both the opposite parties.