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Judgment
Heard Mr. Dhruv Suri, Advocate, for the complainant and Mr. Gaurav Sharma, Advocate, for the opposite party.
Rajiv Gulati has filed above complaint for directing the opposite party to (i) refund INR 7331767.38 with interest @12% per annum from the date of respective deposit till the date of actual payment; (ii) pay INR1000000/- as compensation for mental agony and harassment; and; (iii) pay INR 500000/-, as litigation cost; and (iv) any other relief which is deemed fit and proper in the facts of the case.
The complainant stated that 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 and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “The Corridors” at Sector-67-A, Gurgaon, in the year 2013 and made wide publicity of its facilities and amenities. Believing upon the representations of opposite party, the complainant booked Apartment No.803, 8th floor, Tower D5, on 11.02.2013 and deposited booking amount of Rs.2000000/-. The opposite party mentioned Unit No.CD-D5-08-803 in receipt dated 07.03.2013. As per demand, the complainant deposited Rs.1700000/- on 22.04.2013 and Rs.748700/- on 27.04.2013. The opposite party issued Allotment Offer Letter on 07.08.2013, allotting Unit No.CD-D5-08-803, super area 2213 sq.ft. As per demand, the complainant deposited Rs.2883067.38/- on 09.04.2014 of the instalment of “commencement of excavation”. The opposite party executed Apartment Buyer’s Agreement in favour of the complainant 22.04.2014, in which total cost Rs.21576750/- was mentioned. The complainant visited the site and found that no construction was started on the spot. The complainant sought for update of the construction from the opposite party but they did not respond. The complainant, through email dated 18.05.2016, requested for cancellation of his allotment and refund of his money, however, the opposite party through reply dated 26.05.2016, declined the request. The complainant, again through email dated 19.06.2016, requested for cancellation of his allotment and refund of his money. M/s. Precision Realtors Private Limited issued a letter dated 04.08.2016, seeking no objection for revision of the map. Clause-13.3 of the agreement provides 42 months period from the date of approval of building plan, for offer of possession, with grace period of 180 days. The building plan was approved on 23.07.2013 and 48 months expired on 22.07.2017. The complainant then gave a legal notice dated 10.08.2018, for refund of his amount with interest. In spite of service of legal notice the opposite party did not respond. Then this complaint was filed on 03.05.2019, alleging deficiency in service.
The opposite party filed its written reply on 23.07.2019 and contested the matter. The material facts relating to the project, allotment of the apartment to the complainant, execution of Apartment Buyer’s Agreement dated 22.04.2014 and payments made by him, have not been disputed. The opposite party stated that although building plan was approved on 23.07.2013 but “No Objection Certificate” from Fire Department was delayed and issued on 27.11.2014 although it was applied on 24.10.2013. The opposite party started construction in two phases. In first phase, construction of Towers A-6 to A-10, B-1 to B-4, C-3 to C-7, EWS, Convenient shopping were under taken, which were completed and the opposite party applied for issue of “occupation certificate” on 21.07.2017, 28.05.2018 and 05.07.2018 and “occupation certificate” was issued on 31.05.2019. The opposite party has issued offer of possession to the allottees of above towers. After coming into force of Real Estate (Regulation and Development) Act, 2016, the project relating to was registered with Haryana Real Estate Regulatory Authority vide Registration No.377 and 378 of 2017. The construction of remaining towers are proceeding with full spring and supervision of HRERA. The complainant has made last payment on 09.04.2014. The complainant, through emails dated 18.05.2016 and 19.06.2016, started demanding for cancellation of his allotment and refund of his money. After start of construction payment request of the instalment was raised from the complainant vide letter dated 02.03.2017. Instead of making payment remaining, the complainant gave legal notice 10.08.2018, for refund. Demand of the complainant for refund was premature and The complaint is pre-mature and is liable to be dismissed as period of 42 months is liable to be counted from 27.11.2014 and due date of possession including grace period would be 26.11.2018. Under clause-13.5 of the ABA, the opposite party was entitled for extension of one year period thereafter. Extended period was up to 26.11.2019. Delay has occurred due to the reasons beyond the control of the opposite party and is a force majeure reason as provided in Clause-13.3 and 13.6 of the ABA. The opposite party is entitled for extension of the period.
The complainant filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Rajiv Gulati and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Ruchi Kumar and documentary evidence. The complainant filed his written argument and stated that the dispute between the parties have been settled through Settlement Agreement dated 08.10.2021.
ORDER
The complaint is disposed off in terms of settlement agreement dated 08.10.2021.