Karan Singal vs IREO Victory Valley Pvt. Ltd. & 2 Ors

V.K. Jain, J

The complainant booked a residential flat with the OP in a project namely 'Ireo Victory Valley', which the OPs were to develop in Gurgaon. Flat No.C-2304 in the said project having been allotted, they executed an Apartment Buyers Agreement with the OPs on 15.05.2013. Clause 13.3 of the Agreement refers to the possession, and reads as under:

13.3 Subject to Force Majeure, as defined herein and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement and not being in default of any provisions of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the Allottee within a period of 36 months from the date of approval of the Building Plans and/or fulfillment of the preconditions imposed thereunder ("Commitment Period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 (One Hundred and Eighty) days ("Grace Period"), after expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control of the Company.

The possession of the allotted flat having not been offered to the complainant despite he having paid Rs.2.38 Crores to the OP, he approached this Commission by way of this Consumer Complaint seeking refund of the amount paid by him to the OPs with compensation etc.

The complaint has been resisted by the OP which has admitted the allotment made to the complainant as well as the payment received from him. Execution of the Buyers Agreement is also admitted. This is also the case of the OPs that the Occupancy Certificate in respect of the Tower in which the flat allotted to the complainant is located has since been obtained by them on 28.09.2017 and thereafter, possession has been offered to him on 14.12.2017 during pendency of the complaint.

The complaint is stated to have been resisted on the grounds which this Commission has already rejected in Consumer Complaint No.2110 of 2016 Shamshul Hoda Khan Vs. M/s Ireo Victory Valley Pvt. Ltd. & Anr. decided on 17.01.2019. The decision of this Commission in Shamshul Hoda Khan (supra), to the extent it is relevant, reads as under:

It is an admitted position that the requisite sanction for construction of the buildings was granted on 29.11.2010 by Directorate of Town and Country Planning, Haryana. Condition No.3 of the sanction, reads as under:-

"On receipt of the above request the Commissioner, Municipal Corporation, Gurgaon after satisfying himself that the entire fire protection measures proposed for the above buildings are as per NBC and other Fire Safety Bye Laws, and would issue a NOC from the Fire Safety and means of escape/access point of view. This clearance/NOC from the File Authority shall be submitted in this office alongwith a set of plans duly signed by the Commissioner, Municipal Corporation, Gurgaon within a period of 90 days from the date of issuance of sanction of building plans. Further, it is also made clear that no permission for occupancy of the building shall be issued by Commissioner, Municipal Corporation, Gurgaon unless he is satisfied that adequate fire-fighting measures have been installed by you and suitable external fire-fighting infrastructure has been created at Gurgaon, by Municipal Corporation, Gurgaon before grant of occupation certificate by the Director General."

A similar condition imposed in the approval of the building plans recently came up for consideration of this Commission in CC/189/2017 Pradeep Kumar Gupta Vs. Ireo Grace Realtech Pvt. Ltd. & other connected matters decided on 10.1.2019, and the following was the view taken by this Commission in this regard relying upon its earlier decision in CC/1998/2016 - Subodh Pawar Vs. Ireo Grace Realtech Pvt. Ltd. & Ors., decided on 24.9.2018:-

"The contention of the learned counsel is that the period stipulated for offering possession should start from the date on which the clearance from fire authority was issued. She also submits that the said clearance came to be issued only on 27.11.2014 though according to the learned counsel, the same was applied on 24.10.2013. It would be seen from the condition relating to fire safety condition in the approval dated 23.07.2013 that an NOC from the Fire Safety Department was to be obtained by the OPs and submitted to the Directorate of Town and Country Planning, Haryana within a period of 90 days from the issuance of the said approval. The aforesaid period of 90 days expired on 21.10.2013. The OPs thus, did not even apply for the requisite NOC from fire authority within the period stipulated for obtaining and submitting the said approval. More importantly, there was no such stipulation in the approval dated 23.07.2013 that the builder could not commence construction without obtaining the said fire safety NOC. Only the Occupancy Certificate could not have been issued without the Municipal Corporation, Gurgaon satisfying itself that adequate fire safety measures had been installed and suitable external fire-fighting infrastructure had been created at Gurgaon by the said Corporation. The OPs therefore, could have started the construction immediately after the aforesaid approval dated 23.07.2013 was obtained. The possession therefore, ought to have been offered by 23.01.2017 since in the absence of unforeseen circumstances, the benefit of the grace period was not available to the OPs."

In Pradeep Kumar Gupta (supra), the learned counsel for the opposite party relied upon the provisions contained in Haryana Fire Service Act, 2009, in support of his contention that construction could not have commenced without obtaining the required fire safety approval. Rejecting the contention, this Commission interalia held as under:-

"As noted by this Commission in Subodh Pawar (supra), the building plan approval which was issued by Directorate of Town and Country Planning, Haryana on 23.07.2013 did not prohibit the builder from commencing the construction before obtaining the requisite fire safety approval, though it required the builder to obtain the requisite Clearance / NOC from the fire authority within a period of 90 days from the issuance of the sanction of the building plans and it also stipulated that the permission for occupancy of the building shall not be issued by the Commissioner, Municipal Corporation, Gurgaon unless he was satisfied with respect to the adequacy of fire-fighting measures and external fire-fighting infrastructure, before grant of occupation certificate. The learned counsel for the OP has not been able to draw my attention to any provision of Haryana Fire Service Act prohibiting commencement of construction without first obtaining the fire safety approval. Section 15 on which reliance is placed by the learned counsel for the OP, requires the builder to apply for the requisite approval before commencement of the construction and issuance of the NOC but does not put an embargo on the start of the construction without first obtaining the said approval, provided that the application, meeting requirements of the Act is submitted before starting the construction. Therefore, once the approval was applied for, the builder could commence the construction. In fact, sub-section (2) of Section 15 envisages issuance of a provisional NOC, before the construction is taken up. The said provisional NOC is mandated to be issued within 60 days of submission of the application giving all details of the construction being undertaken as well as the rescue fire provision and fire safety details required to be incorporated during the period of construction. It also provides that during the process of construction, the inspection of the construction may be conducted and advice about additions, deviations etc. can be tendered. On completion of the construction of a high rise building, a NOC is required to be obtained in terms of sub-section (5) of Section 15 of the Act. Therefore, if the opposite party had submitted the requisite application in terms of Section 15(2) of the Haryana Fire Service Act, giving all the details mentioned in sub-section (3) of Section 15, the concerned authority would have issued a provisional NOC to the builder. This is not the case of the opposite party that despite it having submitted an application with the all the required details in terms of sub-section (3) of Section 15, the provisional NOC was not issued to it by the competent authority under Haryana Fire Service Act, 2009. As noted earlier, the building plans came to be approved on 23.7.2013. The opposite party applied for the fire safety clearance on 23.10.2013 though considering the requirement of submitting the NOC within 90 days from the approval of the building plans it ought to have applied for the fire safety NOC/Clearance immediately after the building plans were approved. In any case, if the opposite party did apply for the requisite fire safety clearance on 23.10.2013, along with all the prescribed details in terms of sub-section 3 of Section 15, the provisional NOC would have been issued to it by the competent authority, the same being the mandate of law. Therefore, either the opposite party did not initially give all the prescribed details in its application seeking fire safety clearance or it had actually received the provisional NOC in terms of sub-section (3) of Section 15. If the opposite party had not given the prescribed details required in terms of sub-section (3) of Section 15, it is only itself to blame for the delay in issuance of the provisional NOC. If it had given the prescribed details, there is no reason why the provisional NOC would not have been issued to it."

In the present case, the written version filed by the opposite party does not indicate as to whether the provisional NOC in terms of sub-section (2) of Section 15 of Haryana Fire Service Act, 2009 was issued to them or not. If the said provisional NOC was not issued, the obvious inference would be that the application submitted by the opposite party for grant of the fire safety approval did not meet all the requirements of the said Act. If the said provisional NOC was issued, the opposite party had no difficulty in going ahead with the construction even if the final fire safety clearance came to be issued at a later date.

What is relevant for purpose of deciding the issue involved in this complaint is as to whether the opposite party was unable to commence construction for want of the final fire safety clearance which came to be issued on 28.10.2013 or not. It is an admitted position that the opposite party had been raising demand based upon the stage of construction even prior to 28.10.2013 when the first safety clearance came to be issued. The payment plan agreed between the parties envisaged payment of the 3rd installment on commencement of excavation, 4th on casting of basement roof slab and the 5th on casting of ground floor roof slab. The 6th installment was payable on casting of 3rd floor roof slab. It is an admitted position that even the 4th installment which was payable on casting of basement roof slab was demanded on 5.2.2013. The 5th and 6th installment were demanded on 21.3.2013 and 18.9.2013 respectively. Admittedly, the fire safety clearance had not been received by that time. Thus the opposite party had actually started the construction of the buildings even before receipt of the fire safety clearance on 28.10.2013. This would mean that either the fire safety clearance was not mandatory before commencement of construction and could be obtained thereafter before issuance of the Occupancy Certificate or a provisional NOC in terms of sub-section (2) of Section 15 of Haryana Fire Service Act, 2009 had been issued to it which enabled it to commence construction, even before receipt of the fire safety clearance on 28.10.2013. From whatever angle I may look at it, the fact remains that the fire safety clearance which came to be issued on 28.10.2013 did not come in the way of the opposite party starting and continuing the construction of the buildings in which a unit was allotted to the complainant.

The contention of the learned counsel for the opposite party is that irrespective of the opposite party having started the construction before receiving the fire safety clearance on 28.10.2013, the requisite period of 36 months in terms of Clause 13.3 of the Buyers Agreement has to be computed only from the date on which the said clearance was obtained. In my view, the above-referred clause contained in the Buyers Agreement cannot be interpreted in the manner suggested by the learned counsel for the opposite party. The obvious purpose behind giving time period of 36 months from the date of approval of the building plans or fulfillment of the preconditions if any imposed thereunder was to give a clear period of 36 months to the builder for completing the construction. Even thereafter the builder was allowed a grace period of six months thereby giving it a total time period of 42 months for completing the construction. Had the opposite party been legally prohibited from commencing the construction without obtaining the fire safety clearance and it had actually not started the construction before receiving the said fire safety clearance, it could have been justified in saying that the requisite period of 36 months should be computed from the date on which the said clearance was actually obtained by it. However, the opposite party having already started the construction, it would be only fair and reasonable to say that the said construction could have been started within 60 days of the date on which the fire safety clearance was applied. This is so, considering the provisions contained in sub-section (2) of Section 15 of Haryana Fire Service Act, 2009 which envisage issuance of a provisional NOC within 60 days of submission of the application giving all details of construction as well as the rescue fire provision and fire safety details. The opposite party admittedly applied for the fire safety clearance on 17.12.2010. The time period of 36 months for completing the construction therefore would commence from 17.2.2011. Therefore, the construction ought to have been completed by 17.2.2014 and after giving benefit of the grace period of six months, it ought to have been completed by 17.8.2014.

It would thus be seen that there has been delay of more than three years even in obtaining the Occupancy Certificate since in terms of the agreement, the construction ought to have been completed by 17.02.2014 without giving benefit of the grace period to the OP and on 17.08.2014 after giving the benefit of grace period to the OP. The Occupancy Certificate admittedly was obtained on 28.09.2017.

The learned counsel for the OP submits that the builder having already completed the construction and having already offered the possession of the flat to the complainant during pendency of this complaint, he should be made to take possession of the allotted flat instead of seeking refund of the amount paid by him. This however, is not acceptable to the complainant who states that there has been a change in his personal circumstances in the meanwhile, since his father expired and the accommodation occupied by his father has become available to him. He also relies upon the decision of the Hon'ble Supreme Court in Civil Appeal No. 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter decided on 02.04.2019 and the decision of the Hon'ble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25.03.2019, in support of his contention that in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation.

In Devasis Rudra (supra), the possession was offered to the complainant/appellant during the pendency of the complaint before the State Commission and it was contended that the said builder having made substantial investment in terms of the agreement, a direction for refund was not warranted. In the Consumer Complaint filed in Devasis Rudra (supra), the complainant/appellant had prayed for possession of the house and in the alternative, for refund of the amount paid by him to the developer. In view of the said prayer made in the Consumer Complaint, it was argued on behalf of the builder that he should be made to accept possession of the allotted house and refund and not be allowed to him. The complainant, on the other hand, contended that at the time the Consumer Complaint was filed, he was ready and willing to accept the possession, but seven years having elapsed, he was not more willing to accept possession. Allowing the appeal, the Hon'ble Supreme Court inter-alia held as under:

It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the present case, the complainant did not make a prayer for delivery of possession in the Consumer Complaint and sought refund of the amount paid by him to the builder on account of the delay in offering possession of the allotted unit to him.

In Pioneer Urban Land & Infrastructure Ltd. (supra), the builder submitted before this Commission itself that since the construction of the apartment was complete and Occupancy Certificate had been obtained, the flat purchaser must be directed to accept the possession instead of directing refund of the amount deposited. In that case, there was a delay of about three years in offering possession and the flat purchaser had submitted that he was not interested in taking possession after delay of about three years. He also stated that he had taken an alternative property in Gurgaon. This Commission having allowed refund to the complainant/respondent, the appellant before the Hon'ble Supreme Court inter-alia contended that as per the terms of the agreement executed between the parties, the flat purchaser could claim refund only after expiry of twelve months from the grace period by terminating the agreement but the Consumer Complaint had been filed even before the said twelve months period after the grace period had come to an end. It was also submitted on behalf of the builder that this Commission had erred in granting interest at the rate of 10.7% per annum to the complainant when the agreement between the parties provided for payment of interest @ 6% per annum in case of delay in handing over possession. Rejecting the contentions advanced by the builder, the Hon'ble Supreme Court inter-alia held as under:

6.1. In the present case, admittedly the Appellant - Builder obtained the Occupancy Certificate almost 2 years after the date stipulated in the Apartment Buyer's Agreement. As a consequence, there was a failure to hand over possession of the flat to the Respondent - Flat Purchaser within a reasonable period. The Occupancy Certificate was obtained after a delay of more than 2 years on 28.08.2018 during the pendency of the proceedings before the National Commission.

In Lucknow Development Authority v. M.K. Gupta, 2 this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a "service" as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.

In Fortune Infrastructure & Anr. v. Trevor D'Lima & Ors.,3 this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

6.2. The Respondent - Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant - Builder. The Respondent - Flat Purchaser was justified in terminating the Apartment Buyer's Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent - Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.

6.3. The National Commission in the Impugned Order dated 23.10.2018 held that the Clauses relied upon by the Builder were wholly one-sided, unfair and unreasonable, and could not be relied upon.

The Law Commission of India in its 199th Report, addressed the issue of 'Unfair (Procedural & Substantive) Terms in Contract'. The Law Commission inter-alia recommended that a legislation be enacted to counter such unfair terms in contracts. In the draft legislation provided in the Report, it was stated that :

"A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties."

6.4. A perusal of the Apartment Buyer's Agreement dated 08.05.2012 reveals stark incongruities between the remedies available to both the parties.

For instance, Clause 6.4 (ii) of the Agreement entitles the Appellant - Builder to charge Interest @18% p.a. on account of any delay in payment of installments from the Respondent - Flat Purchaser.

Clause 6.4 (iii) of the Agreement entitles the Appellant - Builder to cancel the allotment and terminate the Agreement, if any installment remains in arrears for more than 30 days.

On the other hand, as per Clause 11.5 of the Agreement, if the Appellant - Builder fails to deliver possession of the apartment within the stipulated period, the Respondent - Flat Purchaser has to wait for a period of 12 months after the end of the grace period, before serving a Termination Notice of 90 days on the Appellant - Builder, and even thereafter, the Appellant - Builder gets 90 days to refund only the actual installment paid by the Respondent - Flat Purchaser, after adjusting the taxes paid, interest and penalty on delayed payments. In case of any delay thereafter, the Appellant - Builder is liable to pay Interest @ 9% p.a. only.

6.5. Another instance is Clause 23.4 of the Agreement which entitles the Appellant - Builder to serve a Termination Notice upon the Respondent - Flat Purchaser for breach of any contractual obligation. If the Respondent - Flat Purchaser fails to rectify the default within 30 days of the Termination Notice, then the Agreement automatically stands cancelled, and the Appellant - Builder has the right to forfeit the entire amount of Earnest Money towards liquidated damages.

On the other hand, as Clause 11.5 (v) of the Agreement, if the Respondent - Flat Purchaser fails to exercise his right of termination within the time limit provided in Clause 11.5, then he shall not be entitled to terminate the Agreement thereafter, and shall be bound by the provisions of the Agreement.

6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines 'unfair trade practices' in the following words :

"'unfair trade practice' means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice ...", and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive.

In Central Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors.,4 this Court held that :

"89. ... Our judges are bound by their oath to 'uphold the Constitution and the laws'. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. ...

... These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."

(emphasis supplied)

6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.

The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent - Flat Purchaser. The Appellant - Builder could not seek to bind the Respondent with such one-sided contractual terms.

We also reject the submission made by the Appellant - Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation.

In Bangalore Development Authority v. Syndicate Bank, a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund.

The learned counsel for the OP also places reliance upon the decision of the Hon'ble Supreme Court in Bangalore Development Authority (supra). The said decision came to be considered by this Commission in CC No.1238 of 2017 Vishal Malik & Anr. Vs. Pioneer Urban Land and Infrastructure Ltd. decided on 29.03.2019 and the following view was taken:

In Bangalore Development Authority (supra), the Hon'ble Supreme Court was dealing with a case relating to allotment of residential flats constructed by Bangalore Development Authority under a Self-Financing Housing Scheme. The Hon'ble Supreme Court interalia observed that the allottee who accepts possession and had the benefit of appreciation of the house is not entitled to interest on the price paid and, therefore, the direction of this Commission awarding interest @ 18% p.a. was set aside. The Hon'ble Supreme Court further observed that the loss of the allottee was the rental income which the house would have fetched had it been delivered earlier, from the agreed due date to the date of actually delivery of possession. It was also noted that no evidence to prove the prevalent rent was produced though this was not case of the complainant that such an evidence was not available. After making the above-referred observations, the Hon'ble Supreme Court also dealt with the question as to whether there was actually any negligence and deficiency on the part of Bangalore Development Authority in service necessitating the award of compensation or not. It was noted that the brochure relating to BDA Scheme did not mention any specific date for the delivery of possession of the house and no agreement was entered into between the parties stipulating any time for performance or delivery of houses. It was further noted that the scheme being a self-financing scheme, the allottee could not expect completion of construction if he did not pay the installments. It was further noted that the payment had been received by BDA without charging any interest from the allottee by way of adjustment, at a much later date on 15.5.1989. It was also noted that BDA had explained that the delay was on account of contractor stopping e wok and raising a dispute whereupon BDA sought government intervention and having failed in its efforts it ultimately cancelled the contract with the contractor and got the work completed through an alternative agency. The Hon'ble Court emphasized that that the BDA was constructing the houses under self-financing scheme on no profit no loss basis by using the installments paid by the allottees. The above-referred judgement, in my opinion, would not apply to the case of a private builder such as the opposite party in this case which undertakes development activity for making profit and not on a no profit no loss basis. In a venture undertaken by a public body such as Bangalore Development Authority on no profit no loss basis, the compensation if awarded against the development authority will have to come out of the public funds. On the other hand, a private builder undertakes such an activity for the purpose of making profit out of it and therefore, the compensation if awarded to the allottee goes out of the profits which the builder seeks to make out of the venture undertaken by him. Moreover, in the present case a specific time limit was fixed in the agreement itself for completion of the construction and even a grace period of six months was kept reserved by the builder for unforeseen circumstances. On the other hand, no such time limit had been fixed in Bangalore Development Authority (supra). Also, no evidence of appreciation in the value of the flat has been led. Hence, it cannot be known as to whether there was any appreciation and if so, to what extent.

The learned counsel for the OP also submits that at the time the complainant executed Buyers Agreement with the OP on 15.05.2013, after applying for the allotted flat on 24.01.2013, he knew it very well that the possession could not be delivered to him by 17.08.2014 since the super-structure upto only six floors was ready at that time whereas this building was supposed to be a 51 storey building. In my view, this argument rather goes against the builder. If the builder was not confident of delivering possession within 3½ years from the sanction of the building plans, it ought to have suitably modified the terms of the agreement so as to make it clear that since the construction was at a rather initial stage at that time, it will require much more time to deliver possession to the complainant. The builder having not done so and having maintained the committed date for delivery of possession at three years from the approval of the building plans alongwith a grace period of six months, it is only itself to blame if it was not able to complete the construction by that date, thereby failing to fulfill the commitment made to the buyer.

For the reasons stated hereinabove, I hold that the complainant is entitled to refund of the amount paid by him to the OP alongwith interest notified under Rule 15 of Haryana Real Estate (Regulation And Development) Rules 2017. The complaint is therefore, disposed of with the following directions:

(i) The OP shall refund the entire principal amount of Rs.2.38 Crores to the complainant alongwith compensation in the form of simple interest @ 10.7% per annum from the date of each payment till the date of refund.

(ii) The OP shall pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

(iii) The payment in terms of this order shall be made within three months from today.