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Judgment
Heard Ms. Aakanksha Nehra, Advocate, for the complainants and Mr. Sanjay K. Shandilya, Advocate, for the opposite parties.
Jatinder Rekhi and A.S. Rekhi have filed above complaint, for directing the opposite party to (i) refund Rs.5993568/- with interest @24% per annum, from the date of respective deposit till the date of payment, (ii) pay Rs.10/- lacs, as compensation for mental agony and harassment; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case. In Additional written synopsis filed on 16.11.2022, the complainants have stated that they had paid total Rs.4575566/ and not Rs.5993568/- to the opposite party.
The complainants stated that M/s. SS Group Private Ltd. (opposite party-1) was a company, registered under the Companies Act, 1956 and opposite parties-2 to 4 were its Directors. They were engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. M/s. Home Seek/GVECTOR Realty (opposite party-5) was a firm, working as a broker in real estate. Opposite parties-1 to 4 (the developer) launched a group housing project, in the name of “The Leaf” at village Badha, Sector-84-85, Manesar, Gurgaon, Haryana, in the year 2012 and made wide publicity of its facilities and amenities.The complainants approached opposite party-5 and inquired about the project “The Leaf”, who informed that they were authorised by the developer to advertise and sell the residential units in said project. The broker also gave rosy pictures of the projects and assured that possession would be delivered within three years. Believing upon the representations of the developer and the broker, the complainants booked a flat on 11.08.2012 and deposited booking amount of Rs.12/- lacs. The developer allotted Unit no.6-A, super area 2600 sq.ft., at the basic rate of Rs.4700/- per sq.ft. on 10.09.2012. The developer raised a demand of Rs.1419662/- on 15.07.2013 of the instalment of “commencement of construction”, although at that time building plan was not approved. The developer executed Flat Buyer’s Agreement on 15.11.2013 in their favour. Annexure-I of the Agreement provides payment plan as “construction link payment plan”. Clause-8(a) of the agreement provides 36 months period from the date of the agreement, for handing over possession and grace period of 90 days. The complainants deposited Rs.1753363/- on 17.07.2014, as per demand of the developer. Thereafter, the complainants visited the site and found that construction was not started. The complainants inquired from the office of the developer as to why the construction was not started then they informed that due to paucity of fund, they could not start the construction. As the developer was not proceeding with the construction, the complainants wrote a letter dated 08.09.2015 and a reminder dated 22.09.2015, for refund of their money with interest. In spite of service of these letters, the developer did not respond. The complainants gave a complaint at Police Station Sushant Lok, Gurgaon, for lodging a FIR but nothing was done. The developer again raised a demand of Rs.4055609/- on 02.11.2016 of the alleged instalment on “completion of 5th floor slab”. The complainants again approached the developer and requested to return their money but they did not give any heed. Then this complaint was filed on 14.03.2017, alleging deficiency in service and unfair trade practice.
The opposite parties-1, 3 and 4 (the developer) have filed its written reply on 06.06.2017, in which, booking of the flat on 11.08.2012, allotment of flat on 10.09.2012 and execution of Flat Buyer’s Agreement on 15.11.2013, have not been disputed. The developer stated that Sukhbir Janapuria had resigned on 20.09.2014, from the post of director in the company and was no more a director. The complainants booked two flat i.e. Unit No.6-A and Unit No. 19-D, in the project “The Leaf” and were investors and not a consumer. The complainants sought for refund of Rs.5993568/- and the complaint is not falling within pecuniary jurisdiction of this Commission. Various home buyers in this project committed default in payment of instalments or delayed payments, due to which, construction of the project was delayed. As on the date of filing written reply total dues of instalments was of Rs.48609180/-. It is incorrect to say that the developer had stopped construction. Due to defaults committed by home buyers, the construction was proceeding with slow step and at present 75% construction has been completed. As per Payment Plan, the complainants had to pay Rs.12/- lacs as booking amount and 20% of basic sale price within 45 days of booking. After depositing booking amount, the complainants gave a cheque of Rs.1411000/- on 06.02.2016, which was not en-cashed, which was informed to the complainants but they did not clear this dues. On “commencement of construction”, the complainants deposited the instalment on 17.07.2014 of Rs.1753363/-, after issue of cancellation notice on 11.04.2014.Thereafter, the complainants stopped payment of instalments, in spite of demand letters and reminders issued to them. The complainants have deposited total Rs.4575566/- till 17.07.2014 out of total consideration of Rs.14489000/-. Delay in construction cannot be attributed to the developer. In fact delay in construction give rise in increase of the cost of material and labours, for which, the developer has to incur extra money. As per agreement, due date of possession was February, 2017, subject to timely payment of instalments. Clause-8.3(a) protects interest of the buyers by providing delayed compensation, in case, the construction is delayed. The complainants vide letter dated 08.09.2015 and a reminder dated 22.09.2015, began demanding refund of their money with interest @24% per annum. Although the complainants have committed breach of contract but on false allegation they tried to initiate criminal proceeding against the developer. The complaint has been filed on various false and frivolous allegations and is liable to be dismissed.
The complainants have filed Rejoinder Reply, Affidavit of Evidence of A.S. Rekhi and documentary evidence. The developer has filed Affidavit of Evidence of Bijimol Mani and documentary evidence. Both the parties have filed their written submissions.
We have considered the arguments of the parties and examined the record. From the documents attached along with Affidavit of Evidence of Bijimol Mani, it is proved that the developer had obtained Development Licence No.81 of 2011, from Director General, Town and Country Planning, Haryana, for development of the project of group housing and Building Plan was sanctioned on 25.06.2013 vide Memo No.ZP-836/AD (RA)/2013/43827. After coming into force of Real Estate (Regulation and Development) Act, 2016 and notification of HRERA authority, the project was registered on 01.05.2019. The developer obtained financial help under “The Swamih Investment Fund” scheme on 23.07.2020 and completed construction of Blocks B-1, B-2, B-3, B-4, B-5, B-6 and EWS Tower and applied for issue of “occupation certificate” on 18.06.2021. As such allegations of the complainants that the developer did not have licence for development or sanctioned building plan on the date of agreement are incorrect. There is nothing on the record to prove that demands were raised without completing the stages of the construction. As such there is no justification to the complainants for not depositing, demanded amount.
The complainants have filed a copy of ledger as Annexure-C-3. A perusal of ledger shows that the complainants deposited Rs.2/- lacs on 18.08.2012, Rs.10/- lacs on 31.08.2012, Rs.211203/- on 14.09.2012 and Rs.1753363/- on 17.07.2014. The complainants did not follow payment plan attached with the agreement dated 15.11.2013 in spite of demand letters and reminders for payment. The complainants have committed breach of contract. As such as per clause-1.2(f) of the agreement, the developer is entitled to forfeit earnest money, which is 10% of sale price and brokerage charges.
The complainants have claimed interest @24% per annum on their deposit. Supreme Court in Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that 9% interest is just compensation, which amounts to restitutory and compensatory both, in case of refund.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The opposite party-1 is directed to refund the entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of payment, after deducting 10% of basic sale price and brokerage, within a period of two months from the date of this judgment.