Mrunmaya Kar vs Piyush Heights (Piyush Group)

Ram Surat Ram Maurya, Presiding Member

Heard Mrunmaya Kar, the complainant in person.

The complaint has been filed for (i) refund of Rs.31.78 lacs with interest @ 18% p.a.; (ii) to pay Rs.10.50 lacs as the compensation for increase of land and construction price; (iii) to pay Rs.1000000/- for mental agony and harassment; (iv) to pay Rs.1200000/-, as the rent paid from 2011 till the filing of the complaint; (v) to pay Rs.13.54 lacs as gross deduction of income from 2011 till the date as rebate on housing loan.

The facts, as stated in the complaint and emerged from the documents attached with it, are that M/s. Piyush Buildwell India Ltd. (builder) was a company registered under the Companies Act,1956 and engaged in the business of development in real estate. The builder launched a project in the name of “Piyus Height” at Sector 89, Faridabad, Haryana. Mr. Vishal Sood and Ms. Ashu Sood applied for and were allotted Flat No.D-111, First Floor, Tower - D, super area 1446.07 sq.ft., Basic Sale Price Rs.2821040/-. Thereafter the complainant purchased the aforesaid flat on 23.04.2008 from Mr. Vishal Sood and Ms. Ashu Sood with the approval of the builder. The Builder Buyer’s Agreement was executed in favour of the complainant on 19.06.2008. The payment plan was a “Construction Linked Payment Plan”, in which, sale price was required to be paid on percentage basis at different levels of the construction. It is alleged that the complainant deposited total Rs.3172600.87, time to time. On completion of construction, builder applied for issue of “Occupation Certificate”, which was granted on 26.02.2014. Thereafter, the builder offered possession on 03.03.2014. Along with the letter of offer of possession, the builder supplied statement of account to the complainant requiring him to deposit Rs.1633542.15. The complainant did not deposit the amount as demanded. The builder then issued reminder dated 09.06.2014. Then the complainant began to demand refund of his deposit along with compensation for delay in offer of possession. The builder, vide letter dated 24.03.2015, agreed to waive ‘holding charges’ of Rs.93772/-. However, the complainant gave a legal notice dated 01.04.2015 to refund his amount with compounding interest @24%. Then this complaint was filed on 11.05.2015.

The builder filed its written reply on 28.09.2015, in which, the material facts have not been denied. It has been stated that under the Builder Buyer’s Agreement dated 19.06.2008, construction has to be completed within 36 months with grace period of six months. The construction was completed in the year 2013. Thereafter, the builder applied for issue of Occupation Certificate, which was issued by competent authority on 26.02.2014, thereafter the builder has issued offer of possession letter on 03.03.2014. The complainant instead of depositing the balance amount, begun to write one or other letters raising his objection to demand of money as mentioned in the statement of account dated 03.03.2014. All the demands were raised in terms of Builder Buyer’s Agreement dated 19.06.2008. So far as holding charges is concerned, the builder vide letter dated 24.03.2015 agreed to waive holding charges, but instead of depositing the amount, the present complaint has been filed for refund of the money. The complainant has deposited total amount of Rs.3172600.87, while, in the present complaint, the complainant has claimed Rs.127.92 lacs which is mala fide. The payment plan was a “Construction Linked Payment Plan”, as such the amounts were realised at the various levels of the construction. In the facts of the case, there was no unreasonable delay in completing the construction. The complainant was not entitled for the relief claimed in the complaint and the complaint is liable to be dismissed.

The complainant has filed his rejoinder reply and Affidavit of Evidence on 25.05.2016. The builder filed Affidavit of Evidence of Vijay Kumar Garg on 06.09.2016. Both the parties have filed their documentary evidence and written submissions.

I have considered the arguments of the complainant in person and examined the record. A perusal of Builder Buyer’s Agreement dated 19.06.2008 shows that payment mode was “Construction Linked Payment Plan” as mentioned in Annexure –B. Under clause 27 (a) of the agreement, it has been provided that the company would complete the construction of the flat within 36 months from the date of signing of the agreement with extended period of six months. This period expired in the beginning of the year 2012. It is alleged that the construction was completed in 2013 and the builder has applied for issue of Occupation Certificate, which was granted on 26.02.2014. The builder offered possession to the complainant on 03.03.2014. There was no unreasonable delay in raising the construction. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, has held that time cannot be an essence of contract in the matter of civil work. The payment plan was “Construction Linked Payment Plan”, as such, the complainant was required to pay the amount at various levels of construction. Thus, no prejudice has been caused to the complainant in delay, which has occurred in raising the construction. Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 has held that once the possession has been offered after obtaining “Occupation Certificate”, then the allottee is obligated to take possession of it. In the circumstances, it cannot be held that there was any deficiency in service on the part of the builder.

The present complaint has been filed for refund of the amount. As the complainant has terminated the agreement as such, under the agreement the builder is entitled to forfeit the earnest money. Although under Clause 20 of the Builder Buyer’s Agreement, 20% of sale consideration has been mentioned as earnest money, but Supreme Court in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Kailash Nath Associates Vs. Delhi Development Authority, (2015) 4 SCC 136 , held that forfeiture of money must be reasonable. This Commission in Consumer Case No.438 of 2019, Ramesh Malhotra & Ors. Vs. EMAAR MGF Land Ltd. & anr., decided on 29.06.2020 and Consumer Case No.3328 of 2017, M rs. Prerna Banerjee & anr. Vs. Puri Construction Pvt. Ltd., decided on 07.02.2022 held that 10% of basic sale consideration is reasonable amount to be forfeited in the name of “earnest money”.

ORDER

In such circumstances, the complaint is partly allowed. The builder is directed to refund the entire money deposited by the complainant, after deducting 10% of the Basic Sale Price as earnest money, service tax and VAT, if any, paid along with interest @9% p.a. from the date of respective deposit till the date of refund within a period of two months from the date of this judgment.