Manish Dhawan vs M/S. Dream Home Infrastructure PVT. LTD

V.K. Jain, Presiding Member

The complainant booked a residential apartment with the OP Dream Home Infrastructure Pvt. Ltd. in a project namely 'Heritage Max', which the OP was to develop in Sector-102 of Gurgaon. The booking application was submitted on 11.09.2012. Vide allotment letter dated 20.09.2012, Unit No.B-2104 in the aforesaid project was reserved for the complainant. The complainant paid a booking amount of Rs.7 lacs to the OP on 04.09.2012 for which a receipt dated 22.09.2012 was issued to him. The aforesaid payment was followed by further payments. The parties then executed an agreement dated 12.03.2013 incorporating their respective obligations in respect of the aforesaid allotment. In terms of clause 18(a) of the Agreement, the construction was to be completed within 42 months of its start or from the date of execution of the Agreement, whichever was later, followed by a grace period of six months, subject of course to payment of the balance sale consideration as per the schedule of payment, which was Annexure-5 to the Agreement. The construction, it appears, started before the execution of the Agreement and therefore, in terms of Clause 18 referred hereinabove, the possession had to be delivered latest by 12.03.2017 after giving benefit of the grace period to the OP.

Vide letter dated 15.04.2017, the OP requested the complainant to make payment mentioned therein in order to enable them to hand over possession of the allotted flat to her. The OP had applied for the grant of the Occupancy Certificate on 03.10.2016, much before the aforesaid letter came to be issued and the Occupancy Certificate was obtained by it on 03.04.2017. Thus, the aforesaid demand letter was issued after receipt of the Occupancy Certificate. Instead of making payment in terms of the aforesaid letter, the complainant approached this Commission on 16.05.2017 seeking refund of the amount paid by her to the OP or in the alternative, immediate possession of the allotted house with compensation etc.

The complaint has been resisted by the OP which has admitted the allotment made to the complainants as well as the agreement executed with them. They also admitted having received Rs.1,15,19,788/- from the complainants. It is stated in the written version that the complainants have failed to make payment of the balance amount which comes to Rs.71,65,130/- as on 13.07.2017.

As far as possession of the allotted unit is concerned, the learned counsel for the OP states that despite default on the part of the complainant, they have not cancelled the allotment and their right to deliver the possession of the allotted unit to the complainant subject to payment of the balance amount with interest. The learned counsel for the complainant however, submits that since the complainant has in the meanwhile, reconstructed their family house, they are no more interested in taking possession of the allotted unit and want refund of the amount paid by them to the OP alongwith appropriate compensation.

Though the case of the complainant is that the OP had verbally promised to deliver possession within 36 months of the booking, there is no documentary evidence to support the said verbal assertion. Moreover, clause 18 of the agreement executed between the parties clearly envisages delivery of possession within 42 months from the start of construction or execution of the agreement whichever was later alongwith a grace period of six months. Therefore, I have no hesitation in holding that the possession was to be delivered to the complainant by 12.03.2017. Since the Occupancy Certificate has been obtained soon thereafter on 03.04.2017, there is hardly any delay in offering possession to the complainant the same having been offered on 15.04.2017. The OP has not cancelled the allotment despite the default on the part of the complainant in making balance payment demanded vide letter dated 15.04.2017. If the complainant, for his personal reasons, does not want to take possession of the allotted unit, he is entitled to refund of the amount paid by him to the OP only after deduction of the earnest money. Though as per the agreement executed between the parties, 15% of the sale consideration would constitute the earnest money, in view of the decision of this Commission in DLF Ltd. Vs. Bhagwanti Narula I (2015) CPJ 319 (NC) decided on 06.01.2015 , which this Commission has later followed in several other cases, only the amount which was paid at the time of concluding the contract can be said to be the earnest money, subject to maximum of 10% total price. In the present case, the complainant paid a sum of Rs.7 lacs, before the allotment letter came to be issued. The contract between the parties got concluded when the allotment letter was issued though the detailed terms and conditions were incorporated in the agreement executed at a later date on 12.03.2013. Therefore, the OP, in my opinion, is entitled to forfeit only Rs.7 lacs from the principal amount paid by them to the OP. As far as interest on that amount is concerned, considering that the allotment has not been cancelled by the OP despite default on the part of the complainant and the OP continues to carry the inventory including the unit in question, no interest on the balance amount would be payable provided that the said balance amount is refunded in a time bound manner.

The complainant, as already noted, paid a total sum of Rs.1,15,19,788/- to the OP. After deducting a sum of Rs.7,00,000/- as earnest money, the balance amount of Rs.10,819,788/- is refundable to the complainant. The OP is directed to refund that amount to the complainant within two weeks from today failing which it shall carry interest @ 10% per annum with effect from the date of this order till the date of payment. No order as to costs.