Rakesh Gupta & Anr vs Ireo Grace Realtech Pvt. Ltd

A. P. Sahi, President Member

IA No. 891 of 2022

This Application seems to have been kept pending and was not disposed of as the order sheet indicates that the matter proceeded with for filing of evidence which has now been filed by both the sides.

In these circumstances the Application has become infructuous and is accordingly consigned to record.

Complaint

This matter has been taken up and has been heard in respect of the claim of refund made by the Complainants in terms of the Builder Buyer Agreement executed on 26.06.2015. The apartment is part of the project known as “The Corridors” in Sector 67-A, Gurugram, Haryana, and is a project developed by M/s Ireo Grace Realtech Pvt. Ltd., the Opposite Party herein.  The Complainants herein state to have tendered an amount of Rs.17,78,000/- at the time of booking and a total amount of Rs.2,00,84,823.06 is said to have been paid as against the total consideration of Rs.2,01,17,258/-.

It is the allegation of the Complainants that in spite of having waited for long and in spite of the promised period of 42 months for handing over possession having expired as per the terms of the Agreement with further 6 months grace period coming to an end on 26.11.2018, no effort was made to finalise the constructions  nor any offer of possession was forthcoming from the Opposite Party as a result whereof several such flat buyers approached various Forums/Commissions, including this Commission, contending that they are entitled for refund.  This claim of refund was founded on the very same premise of non-completion of the project with no offer of possession and one of the cases to this effect was dealt with by the Commission that travelled upto the Apex Court in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna And Ors., (2021) 3 SCC 241.  The said Three Judges decision of the Apex Court also traversed this aspect of the matter and drew a distinction between those buyers whose allotments were found to be worth giving possession on the ground that the developer had been granted the occupation certificate and offer of possession had been made within a reasonable time, whereas the second category related to those apartment buyers where occupation certificate had not been either procured, obtained or granted.  The second category of apartment buyers is referred to in Para 43.1(ii) of the said judgment which includes Tower B 8.  The present Complaint is also with regard to allotment in the same tower.

We have gone through the pleadings of the Opposite Party, in spite of the fact that the learned Counsel for the Opposite Party has chosen not to appear, and we find from the evidence affidavit as well as the other documents filed by the Opposite Party that the defence taken up by them is that they had applied for the grant of occupation certification on 10.09.2019 and the said grant was delayed on account of certain litigation that was filed by some of the allottees who approached the Director, Town & Country Planning, Haryana alleging violation of certain licencing norms by the Company, with a relief that the builder should not be granted the occupation certificate.  It is the case of the Opposite Party that the said request of the flat buyers was rejected on 25.09.2020, against which they preferred a statutory appeal before the State Government that was dismissed on 11.11.2021.  It is thereafter only that the occupation certificate could be granted on 27.01.2022 and hence any such delay in the grant of occupation certificate cannot be attributed to the builder who had made all efforts to obtain the occupation certificate.  Taking this into defence, it is submitted on behalf of the Opposite Party that in view of the force majeure clause contained in the agreement this being a reason beyond the control of the developer, the flat buyers cannot seek refund and as a matter of fact are entitled to take possession which was offered according to the showing of the Opposite Party vide offer of possession letter dated 16.02.2022.  The occupation certificate dated 27.01.2022 has also been brought on record to substantiate the said defence.

It is to be noted that the present Complaint was filed on 31.01.2022 i.e. 3 days after the issuance of the occupation certificate but before the letter of possession came to be issued by the Opposite Party as noted above.

Learned Counsel for the Complainants has advanced his submissions contending that even if this distinguishing fact is sought to be taken as a defence, the same already stands concluded by a series of decisions which establish that such a defence is not available.  He has relied on the judgment of the Apex Court in the case of Pioneer Urban Land And Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725.  Para 6.1 of the said judgment is extracted hereunder:-

“6.1. In the present case, admittedly the Appellant – Builder obtained the Occupancy Certificate almost 2 years after the date stipulated in the Apartment Buyer’s Agreement. As a consequence, there was a failure to hand over possession of the flat to the Respondent – Flat Purchaser within a reasonable period. The Occupancy Certificate was obtained after a delay of more than 2 years on 28.08.2018 during the pendency of the proceedings before the National Commission. In LDA vs. M.K. Gupta, this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure & Anr. v. Trevor D’Lima, this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.”

The said judgment has been consistently followed and learned Counsel has invited the attention of the Court to the judgment dated 10.10.2022 of the Apex Court in the case of M/s Chintels India Ltd. Vs. Sangeeta Agarwal & Anr. (Civil Appeal Nos. 7108 – 7109/2022), where a similar issue with regard to obtaining of occupancy certificate during the pendency of the matter was considered and it was held that since there was a delay of 1 year and 5 months, the same cannot and will not condone the deficiency in service.  Para-12 and 13 of the said judgment are extracted hereunder:

“12.  It further appears that the appellant relied upon a declaration said to have been issued under Section 2 read with Section 11 of the Haryana Apartment Ownership Act, 1983to the effect that the Occupation Certificate has been issued by the Competent Authority on 4-7-2019.

This document, in our considered view, does not advance the appellant’s case after the last date to handover possession expired on 17-1-2018. Even if the appellant was able to secure partial Completion Certificate/ Occupancy Certificate from the Authorities after a delay of 1 year 5 months, it cannot and will not condone the deficiency in service.”

An Order of this Commission in the case of Ashay Shah Vs. Ireo Grace Realtech Pvt. Ltd. & Anr. (Consumer Case No. 2028 of 2018) dated 14.06.2022 has also been placed to support this contention and it is informed that an SLP against this order has been dismissed by the Apex Court.

It is submitted that the interest payable on the refund amount would be calculated from the scheduled date of possession till the date of actual payment which, according to him, in the present case would be 27.11.2018.

He has further invited the attention of the Court to two other orders passed by this Commission on 23.01.2023 in the cases of Rupali Bahl Vs. M/s Ireo Grace Realtech Pvt. Ltd. & Ors. (Consumer Case No. 107 of 2019) and Sanjiv Puri & Anr. Vs. M/s Ireo Grace Realtech Pvt. Ltd. (Consumer Case No. 1147 of 2019) and other connected matters. A perusal of the aforesaid orders which are in relation to the same project developed by the same developer also therefore fortifies the arguments which have been advanced on behalf of the Complainants.

It is therefore clear from the judgments and the orders as well as the pronouncements of the Apex Court and this Commission, that even if the occupancy certificate has been obtained, the same does not condone the delay which in the present case appears to be more than 4 years and 5 months calculated from the schedule date of possession, i.e., 27.11.2018.

In the light of these facts that emerge from a perusal of the pleadings between the parties and the law as referred to hereinabove, there is no option but to allow this Complaint and it is accordingly allowed with a direction to refund the entire amount as claimed by the Complainants to have been paid in terms of prayer clause (a) which shall be paid by the Opposite Party together with interest @ 9% per annum w.e.f. 27.11.2018 till the date of actual payment.  Litigation costs Rs.50,000/-.  Ordered to be complied within three months from today.  In the event of default of the directions above, the rate of interest shall stand enhanced to 12%.

A copy of this Order may be served to the parties as usual.  In addition thereto, learned Counsel for the Complainants may serve a copy of this Order on the Counsel for the Opposite Party who has remained absent in spite of the matter being heard and decided during the course of the day.