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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Arjun Harkauli, Advocate for the Complainant. Counsel for the Opposite Party has not attended the complaint on 06.09.2021, 20.10.2021, 07.12.2021 and 09.05.2022. Today also, no one appears for the Opposite Party.
The above complaint has been filed for directing the Opposite Party to refund entire amount of Rs.68,04,030/- with interest @ 15% per annum to the Complainant and to pay penalty due to delay in the project @ Rs.5/- per sq. ft. per month from 12.10.2012 and to pay litigation of Rs.2 lacs and compensation of Rs.10 lacs for mental agony and harassment and any other relief which is deemed proper and fit in the facts of the case. It has been stated that the opposite party is a company registered under the Companies Act and engaged in the business of construction and selling of group housing. The opposite party launched a project in the name of ‘Today Callidora’ at Sector-73, Sohna Road, Gurugram, Haryana in the year 2011 and made wide publicity of the project. Allured with the presentation of the opposite party, the complainant booked a 2 BHK flat admeasuring 1260 sq. ft. in the said project ‘Today Callidora’ on 25.07.2012. At the time of booking of the project, the complainant deposited the booking amount and later on, the complainant was allotted unit no.1401, Tower-2 on the 14th Floor of the said project. The opposite party executed agreement to sell dated 12.10.2012 in favour of the complainant. As per annexure-2 of the agreement, the payment plan was construction linked payment plan and total cost of the flat was Rs.72,76,020/-. It is alleged that the complainant deposited the following amount as per demand of the opposite party:
Date
Amount paid in favour of ‘Today Homes and Infrastructure Pvt.
Ltd.’ payable at the New Delhi bank branch
25.07.2012
6,29,748/-
26.08.2012
6,29,748/-
24.09.2012
6,29,748/-
05.10.2012
7,42,581/-
05.10.2012
72,972/-
09.11.2013
7,57,176/-
27.12.2013
6,83,675/-
01.02.2014
6,41,541/-
05.02.2014
4,86,905/-
19.07.2014
4,72,311/-
10.07.2015
3,25,895/-
06.02.2016
3,26,288/-
05.11.2016
3,29,043/-
19.07.2017
76,399/-
Total
68,04,030/-
In clause 23 of agreement to sell, it has been provided that subject to force majeure, physical possession of the said unit would be delivered within 36 months from the date of the execution with further grace period of six months. The said period of 42 months expired in April, 2016 but the project was neither completed nor possession was delivered. It may be mentioned that as per the demand, the last instalment was deposited by the complainant on 19.07.2017 and thereafter, no demand has also been made. Claiming deficiency in service, the present complaint has been filed in April, 2018.
The opposite party put appearance and filed written reply in the complaint on 19.12.2018 in which the material facts as pleaded by the complainant in the complaint have not been denied. However, the opposite party took plea that due to reason of force majeure, the construction could not be completed. The various technical plea related to maintainability of complaint have also been raised. The complainant filed affidavit of evidence of Pradeep Singh, complainant no.1 and his wife Mrs. Meena Singh, complainant no.2 and affidavit of admission denial. The complainants have also filed their affidavit of admission denial of the documentary evidence. The opposite party filed affidavit of evidence of Saurabh Yadav as well as affidavit of admission denial of the documentary evidence. The complainant filed his short synopsis of arguments. Inspite of various opportunities given to the opposite party, they have failed to file any short synopsis of arguments.
I have considered the arguments of the counsel for the complainant. As per clause 23 of the agreement to sell dated 12.10.2012, the possession ought to have been delivered complete in all respects within 36 months with a grace period of six months from the date of execution of the agreement to sell. This period has expired in April, 2016. The complainant has made timely payment of the instalment and there is no reason for delaying the project. So far as the force majeure clause is concerned, the opposite party has not adduced any documentary evidence.
ORDER
In these circumstances, the complaint succeeds and is partly allowed with cost of Rs.50,000/-. 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 actual payment within a period of two months from the date of this order.