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Judgment
Heard Mr. Aviral Goyal, Advocate, for the complainants and Mr. Rajat Jain, Advocate for the opposite parties.
Parminder Singh and Harjeet Kaur have filed above complaint for directing the opposite parties to (i) refund a sum of Rs.25928571/-; (ii) pay interest on each deposit @ 12% p.a. on compound basis; (iii) pay sum of Rs.40/- lacs as compensation for mental harassment, torture and inconvenience caused to the complainants; (iv) pay rental charges of Rs.45000/- per month from the due date of possession till payment; (v) Rs.351000/- towards litigation cost; and (vi) any other relief which is deemed fit and proper in the facts and circumstance of the case.
The complainants who are son and mother respectively applied for allotment of an apartment in the project “The Crest” situated at plot No.A-4, Airport Enclave Scheme, Tank Road, Durgapura, Jaipur vide application dated 06.09.2017 for residential purpose. They were allotted flat No.408, 3rd Floor, Wing No.2 in the said project having area of 2150 sq. ft., 4 BHK-D-1 with two covered car parking. An agreement for sale was executed on 11.09.2017 for the above flat for a consideration of Rs.24255000/-. The complainant also applied for housing loan with ICICI Bank and a tripartite agreement was also executed on 13.09.2017. As per payment schedule the complainants paid an amount of Rs.25928571/- upto 19.04.2018. As per agreement, possession of the apartment was to be handed over by 31.05.2018, subject to force majeure but the opposite party failed to hand over the possession within the stipulated period. The opposite parties sought extension of one year, still they failed to fulfil their commitment. The opposite parties again sought one year further extension. Instead of handing over the possession, the opposite parties sought third extension and promised to deliver the possession on 01.06.2021 but till date the opposite party has neither obtained the completion certificate nor handed over the possession. Admitting their fault, the opposite parties paid Rs.160000/- to the complainants in four instalments on 4th September, 4th October, 4th November and 4th December, 2019. Thereafter, the opposite party has neither paid any compensation for delay nor handed over the possession. Then the complainant filed the instant complaint on 07.10.2022.
As the opposite parties failed to file the written statement within the stipulated period, their right to file written statement was closed, vide order dated 05.06.2023.
The complainants filed Affidavit of Evidence of Parminder Singh and documentary evidence. The complainants filed the written arguments. The opposite parties have not filed written arguments, despite one week’s time granted to them on 27.12.2023.
We have considered the arguments of the counsel for the parties and examined the record. In clause 7.1 of the agreement, it is clearly mentioned that possession of the apartment alongwith ready and complete common areas with all specifications, amenities and facilities of the project in place, would be handed over on 31.05.2018 unless there is a delay or failure due to war, flood drought, fire, cyclone earthquake or any other calamity caused by nature affecting the regular development of the real estate project (force majeure). The opposite parties failed to hand over the possession of the apartment despite three extensions. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that the home buyer cannot be made to wait for possession for an unlimited period. The opposite parties failed to handover the possession despite receiving the entire consideration of Rs.25928571/- in April, 2018. This is not only negligence but a gross negligence. Supreme Court in Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor (2002) SCC Online SC 416 held that in case of refund, interest @9% per annum is a just compensation.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed with cost of Rs.50000/-. The opposite parties are directed to refund entire amount deposited by the complainant with interest @9% per annum from respective dates of deposits till the date of refund, after adjusting the amount, if any, already paid to the complainant.