Kulwinder Kaur vs Ireo Grace Realtech Pvt. Ltd

Deepa Sharma, Presiding Member

The present complaint has been filed seeking refund of the deposited amount of Rs.1,50,65,607.27p alongwith interest @ 18% p.a. from the date of respective payments till its realization and a sum of Rs.5.00 lakhs towards mental harassment and agony, Rs.10.00 lakhs towards compensation and sum of Rs.1,00,000/- towards cost of litigation.

Complainant has stated that she had booked a residential apartment in the project, namely, “The Corridors” being developed by the opposite party at Sector 67-A, Gurgaon. Allotment letter dated 13.08.2013 was issued to her whereby apartment bearing No. 1102 in Tower-A5 for total consideration of Rs.2,29,48,119.15p was allotted to her. A flat buyer agreement was executed between the parties on 03.06.2014. As per clause 13.3 of the Builder-Buyer Agreement, opposite party was supposed to hand over possession of the flat within 42 months from the date of approval of the building plans. The complainant made payment of Rs.1,50,65,607.27p on different dates against the total sale consideration as per the demand of the opposite party. Despite that the opposite party could not complete the construction work within the stipulated period and failed to deliver the possession. Even till the filing of the consumer complaint, the possession had not been delivered. Hence the complaint had been filed by the complainant seeking refund and other remedies.

The complaint has been resisted by the opposite party by filing the written statement. It has been submitted that the complainant is the investor and she had booked the subject flat with the intention to sell it to earn profit and is not the real buyer of the flat and, therefore, the complaint is not maintainable. It is further argued that the complainant defaulted many times in payment of instalments and, therefore, had committed breach of contract. It is further contended that claim filed by the complainant regarding delay in possession is pre mature and that they had applied for grant of occupation certificate on 21.07.2017 and revised occupation certificate on 28.05.2018. It is further contended that construction has been substantially completed and, therefore, refund at this stage cannot be granted.

Rejoinder had been filed by the complainant. In the rejoinder, complainant has denied the contentions of the opposite party. Complainant stated that all the payments were duly made to the opposite party as per the demands. It is further stated in the rejoinder that the occupation certificate of the project in question does not pertain to Tower A-5 in which the apartment allotted to the complainant is situated.

Parties led their evidences. The matter was fixed for final arguments and it is argued on behalf of the complainant that it is a covered case covered under the judgment of the National Commission in Consumer Complaint No. 2434 of 2018 titled Harsh Verma & Anr. Vs. M/s Ireo Grace Realtech Pvt. Ltd . decided on 04.10.2021 whereby Commission has duly considered all the contentions raised by the opposite party. Complainant has also relied on the judgment of Hon’ble Supreme Court in Ireo Grace Relatech Pvt. Ltd., Vs Abhishek Khanna (2021) 3 SCC 241 and other connected appeals decided on 11.01.2021 which also relates to the same project of the opposite party.

We have gone through the order of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. (supra) and we are satisfied that it relates to the same project in which the complainant had booked its flat. In the said case, Hon’ble Supreme Court has granted interest @ 9% p.a. from the date of actual offer of possession i.e. 27.11.2018. Since it is a covered case, we are passing the same order as passed in the above mentioned case.

We, hereby, issue the following directions:

(i) The amounts deposited by the Apartment Buyer is refunded with interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount.

(ii). The refund will be paid within a period of three months from the date of this judgment. If there is any further delay, the Developer will be liable to pay default interest @ 12% S.I. p.a.

(iii). The Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer including the delay of over 7 months in obtaining the Fire NOC.

With these directions, Consumer Complaint stands disposed of.