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Judgment
Subhash Chandra, Member
This complaint is filed u/s 21 of the Consumer Protection Act, 1986 by the complainants on 09.10.2019 seeking refund of the amount deposited along with penal interest and other compensation in respect of the flat booked by them with the opposite party – viz., M/s Ireo Grace Realtech Pvt. Ltd., in their project promoted and developed by the opposite party, alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat.
Briefly, the facts are that the complainants had booked a flat in a project promoted and developed by the Opposite party “The Corridors”, in Sector 67 – A, Golf Course Extension Road, Gurugram, Haryana, on 22.03.2013 for their residential purpose. An allotment letter was issued by the opposite party to the complainants on 27.05.2014 allotting flat no. Apartment no.1003, Floor 10, Tower D 3, admeasuring 2415.98 sq ft in the above said project for a total sale consideration of Rs.2,49,604.26/-. While the complainant made regular payments of instalments, the work for Tower D did not start. The complainant requested the opposite party to refund his money along with interest but the opposite party failed to do so on the ground that the complainant did not have any right to terminate the agreement. Complainant avers that thereafter he had no other option but to shift to another apartment in Tower A on the assurance of the opposite party that the date of allotment will be the same as the earlier agreement and possession of apartment shall be offered as per the date in the earlier agreement. The opposite party agreed to deliver an alternate apartment viz. no.401, 4th Floor, Tower A 9, admeasuring 1876 sq ft along with two car parking for a total sale consideration of Rs.2,10,73,431/- towards which the complainant made a payment amounting to Rs.1,01,90,386.68 by March 2017. The opposite party had further assured the complainant that the possession of the said apartment will be offered within 42 months from the date of approval of the building plan which was approved on 23.07.2013. Accordingly, the offer of possession of the apartment was to be made in January 2017. This was not done.
In June 2019, the complainant received a notice of possession from the opposite party with a demand for the balance payment of Rs.1,41,47,088 by July 2019. The complainant requested for the occupation certificate and requested for site inspection. As the opposite party failed to do the same, the complainant sent a number of e-mails to the opposite party but received no positive response. Hence, the complainant filed this complaint with the following prayer:
a. Direct the opposite party to pay an amount of Rs.1,63,04,619/- which includes Rs.1,06,90,387/-as principal amount and Rs.61,14,232,20 as interest for 30 months @ 24% per annum;
b. Direct the opposite party to pay pendent lite interest @ 24% per year during the pendency of this complaint;
c. Direct the opposite party to pay compensation of Rs.5.00 lakh for deficiency in service and for unfair trade practice adopted by opposite party;
d. Direct the opposite party to pay Rs.1.00 lakh as litigation cost; and
e. Any further relief or order, which this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present complaint, may also be passed in favour of the complainant in the interest of justice.
The opposite party remained unrepresented on a number of dates. Notice was returned as unserved as ‘consignment details not found’. We have perused the records and heard the learned counsel for the complainant who submitted that the complaint was squarely covered by the judgement of the Hon’ble Apex Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (2021) 3 SCC 241 dated 11.01.2021 which relates to the same project of the opposite party, i.e., ‘The Corridors’, Sector 67 – A, Gurgaon, Haryana. It is his averment that as per this judgement, the Hon’ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete/un-commenced towers in Phases I and II of the project. Based on the fact that the occupancy certificate from the statutory authority was available only in respect of certain towers on the date when the case was filed and noting the fact that the builder-opposite party had not commenced/completed other towers in Phase II, the Apex Court had balanced the interests of both the consumer complainants and the builder-opposite parties by (a) equitably allocating the obligations for a full refund of payment to be made with penal interest to the allottees in the case of incomplete/un-commenced flats for the interregnum between the committed date and the date of making of the offer of possession by the opposite party and (b) the obligation to accept possession where the complainants had prayed for possession to be made with compensation for the delay in the case of flats/towers where construction was completed and occupancy certificate was available. In doing so, the Hon’ble Apex Court reiterated the law with regard to the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party as laid down in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725. It also reaffirmed that “it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession” as laid down in Kolkata West International City Pvt., Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019. It also affirmed that in view of an absence of the OC or offer of possession, the right of the complainant to refund with compensation cannot be denied.
We are satisfied that the current complaint is covered by this judgment as it relates to the same project in which the complainants had booked their flat. The Hon’ble Supreme Court has ordered full refund with interest from the date of the promise of offer of possession till repayment in cases where no occupancy certificate was available and an offer of possession was not made. Accordingly, we consider it appropriate to allow the complaint with the following directions:
(a) The opposite party shall refund the amount of Rs.1,06,90,387/- along with simple interest @ 9% per annum from 27.11.2018 the date of committed possession as per the ABA till the date of payment;
(b) Opposite party is directed to pay litigation costs of Rs 50,000/- to the complainant;
(c) Order to be complied within 3 months of the receipt of the certified copy of the order;
(d) Opposite party shall be liable to pay a penal interest of 12% per annum in case of default.
With these directions, the consumer complaint stands disposed of.