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Judgment
Heard Mr. Arvind Kumar, Sr. Advocate assisted by Mr. Akshay Joshi, Advocate, for the complainant and Mr. Abhay Anand Jena, Advocate, for the opposite party.
Ms. Manisha Maheshwari has filed above complaint, for directing the opposite party to (i) refund Rs.36821479/- with interest @24% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.500000/-, as costs of litigation; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that Jasmine Buildmart Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Krrish Provence Estate” at village Gwal Pahari, tehsil Sohna, district Gurgaon, in the year, 2012 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked a flat and deposited booking amount of Rs.1000000/- on 14.09.2012. The complainant deposited Rs.4466500/- on 21.09.2012. The opposite party, vide letter dated 24.12.2012, allotted Unit No.D-602, ‘super area’ 5800 sq.ft. for Rs.57875000/- and executed Apartment Buyer’s Agreement on 29.01.2013. By that time, as per payment plan, the complainant deposited total Rs.24571659/-. Payment plan was “possession link plan”, under which 50% consideration was payable within in 5 instalments, per month, 10% was payable “on commencement of internal finishing & flooring”, 30% was payable “on completion of internal finishing & flooring” and 10% was payable “on offer of possession”. As per demand, the complainant deposited total Rs.36821479.50 till 23.12.2015. Clause-3.1 of the agreement provides that possession would be handed over within 36 months from the ‘commencement of construction’ or ‘execution of this agreement’, whichever is later. Due date of possession expired in January, 2015. Even after expiry of two year of due date of possession, the construction was far away from completion. This complaint was filed on 21.04.2017, alleging deficiency in service.
The opposite party has filed its written reply on 05.04.2019, in which, booking of the flat on 14.09.2012, allotment of the flat on 24.12.2012, execution of Apartment Buyer’s Agreement on 29.01.2013 and the deposits made by the complainant, have not been disputed. The opposite party stated that the complainant paid instalment with delay and failed to abide the time line. The opposite party has already erected the structure and started internal finishing and flooring. However due to unfavourable market conditions, the real estate industry was taking a hit in the recent years, the work progressed with slow pace and now it was near the completion. The delay has occurred for the reasons beyond the control of the opposite party. Interest of the buyers have been protected by providing reasonable compensation. The complaint has no merit and liable to be dismissed.
The complainant filed Rejoinder Reply and Affidavit of Evidence & Affidavit of Admission/Denial of documents of Amit Bansal and documentary evidence. The opposite party filed Affidavit of Evidence & Affidavit of Admission/Denial of documents of Suresh Chand Pandey and documentary evidence. The complainant filed IA/10214/2022, stating that she was diagnosed with breast cancer and in need of money for treatment. The complainant has filed short synopsis.
We have considered the arguments of the parties and examined the record. Clause-3.1 of the agreement provides that possession will be handed over within 36 months from the ‘commencement of construction’ or ‘execution of this agreement’, whichever is later. The opposite party stated that all the approvals/sanctions were obtained at the time of execution of the agreement as such due date of possession expired in January, 2015. Till today, the opposite party could not obtain “occupation certificate” as such there is inordinate delay in possession. The opposite party stated that the complainant paid instalment with delay and failed to abide the time line. But a perusal of statement of account shows that 3rd instalment was due on 21.02.2013 and 4th instalment was due on 22.09.2015, from which it is proved that the opposite party itself delayed the project. It is well settled that a home buyer cannot be made to wait for possession for unlimited period.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from this judgment.