Ishan Gupta vs M/s. Ireo Grace Realtech Pvt. Ltd. & 4 Ors

Heard Mr. Shaurya Punj, Advocate, for the complainant, Mr. Sameer Chaudhary, Advocate, for opposite parties-1 and 2 and Mr. Sunil Mund, Advocate, for opposite party-3.

Ishan Gupta (the complainant) has filed above complaint, for directing the opposite parties to (i) refund Rs.13483220/- to the complainant with interest @18% per annum from 14.10.2017 till the date of payment, (ii) pay Rs.50/- lakhs, as compensation for mental agony and harassment (iii) pay cost of the litigation; and (iii) any other relief which is deemed fit and proper in the facts of the case.

The complainant stated that opposite parties-1 to 4 were companies, 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. Opposite parties-2 to 4 were owners of large area of land at Sector-67-A, Gurgaon, Haryana and obtained Licence No.05 of 2013 dated 21.02.2013, from Director, Town & Country Planning, Haryana, for development of group housing project. Under Collaboration Agreement dated 05.03.2013, between the opposite parties, the work of development, construction and sale etc. of the group housing project was assigned to M/s. IREO Grace Realtech Private Limited (opposite party-1) (the developer). The developer launched group housing project in the name of “The Corridors” at Sector-67-A, Gurgaon, in the year 2013 and made wide publicity of the facilities and amenities of the oncoming project. Believing upon the representations and tall promises of the developer, the complainants booked a 2BHK + S flat in 22.03.2013 and deposited booking amount of Rs.14.5/- lacs through two cheques, which were en-cashed on 13.04.2013. The developer applied for sanction of layout plan of the group house project, which was sanctioned by the competent authority on 23.07.2013. The developer, vide letter dated 18.03.2014, provided “Timely Payment Rebate” at rate of Rs.200/- per sq.ft., if all future instalments are paid on or before due date. The developer issued Allotment Offer Letter dated 07.08.2013, allotting apartment No. CD-C-9-06-603, tentative super area 1483.57 sq.ft. and executed Apartment Buyer’s Agreement (ABA) dated 14.04.2014, in which rate of Rs.9200/- per sq.ft. and Basic Sale Price of Rs.13648844/- have been mentioned. The complainant diligently followed payment plan and paid all the instalments on time. The complainant deposited Rs.1450000/- on 08.03.2013, Rs.1364120/- on 30.04.2013, Rs.1667774 + TDS @1% on 02.04.2014, Rs1651075 + TDS @1% on 09.06.2015, Rs.1410015/- + TDS @1% on 15.03.2016, Rs.1410013/- + TDS @1% on 31.05.2016, Rs.1554353/- + TDS @1% on 01.08.2016, Rs.412042/- + TDS @1% on 03.10.2016, Rs.1412042/- + TDS @1% on 23.11.2016 and Rs.45548/- on 05.12.2016 (total Rs.13483220/-). As per clause-13.3 of the ABA, the developer committed to deliver possession within 42 months, from the date of approval of layout plan, with grace period of 180 days. Layout plan was approved on 23.07.2013 and 48 months period expired on 23.07.2017, but the complainant did not receive any information from the developer in respect of delivery of possession. The developer even evaded from sharing any information in respect of progress of the construction although the complainant repeatedly visited the office of the developer several times and inquired about the progress of the construction. This complaint was filed on 08.05.2018, alleging deficiency in service.

The developer filed its written reply on 31.07.2018 and contested the complaint. The material facts relating to the project, allotment of the apartment to the complainant and payment made by him, have not been disputed. The opposite parties raised preliminary objections relating to maintainability of the complaint, namely (i) As per ABA, due date of possession has not expired, as NOC from Fire Department was obtained 27.11.2014 and as per clause-13.5, it is only after expiry of 12 months of due date of possession, the allottee can demand for refund as such no cause of action arose for filing the complaint, (ii) The complainant took loan of Rs.84/- lacs from Vijaya Bank, for paying the instalment, for which, a tripartite agreement dated 31.07.2015 was executed as such Vijaya Bank was necessary party in the complaint. (iii) Interpretations of contractual obligations under allotment letter are required, and (iv) The complainant was not a consumer. The developer stated that after inquiry, the complainant booked a flat in the project and denied any alluring advertisement. Due date of possession was November, 2018. The construction of the tower, in which, the complainant was allotted flat was likely to be completed on due date. There was no deficiency in service on behalf of the opposite parties and the complaint is liable to be dismissed.

The complainant filed Rejoinder Reply on 23.05.2019, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Ishan Gupat. The opposite parties Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Shubhasis Lahiri. The complainant and OP-3 filed written synopsis.

We have considered the arguments of the parties and examined the record. The dispute relating to the project “The Corridor” of the opposite parties was adjudicated by Supreme Court in IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, vide judgement dated 11.01.2021, in which, it has been held that due date for possession would be 27.11.2018, i.e. 48 months from issue of Fire NOC. The developer has completed construction and obtained “occupancy certificate” in respect of Towers A-6 to A-10, B-1 to B-4 and C-3 to C-7 on 31.05.2019 as such the flat buyers of these towers were obligated to take possession, with delayed compensation. The developer has neither completed construction and nor obtained “occupancy certificate” in respect of Towers A-1 to A-5, B-5 to B-8 and C-8 to C-11. As such the developer was liable to refund the amount of the flat buyers/complainants with interest.

In present case, the complainant was allotted Apartment No. CD-C-9-06-603, which situates in Tower C-9. The developer is totally silent in respect of progress of construction of Tower C-9, either in its written reply or in Affidavit of Evidence. Even if due date of possession is taken as 27.11.2021, then also about 4 years has expired. 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. In such circumstance, the complainant is entitled for refund his entire money with interest.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. Opposite party-1 is directed to refund entire amount deposited by the complainant including the amount advanced by Vijaya Bank, with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment. Opposite party-1 is entitled to satisfy the loan amount of Vijaya Bank taken by the complainant, first and thereafter refund the balance amount to the complainant.