R.C. SOOD & CO. Developers PVT. LTD vs Sunil Bansal

R.K. Agrawal, J., President

These two cross First Appeals arise out of the Order dated 28.01.2013, passed by the Haryana State Consumer Disputes Redressal Commission at Panchkula (for short "the State Commission") in Complaint Case No. 9 of 2012. By the impugned Order, while allowing the Complaint, the State Commission has directed R.C. Sood & Co. Developers Pvt. Ltd. (for short "the Developer"), Opposite Party No.1 in the Complaint, to handover the possession of Villa No.25 in Block "B", admeasuring 525 sq. yard (approx.) at Grand Mansion, Rosewood City, Gurgaon, Haryana, complete in all respects, without any further delay, and the Complainant was directed to pay the balance price of Rs.14,40,000/- to the Developer at the time of delivery of possession of the Villa. Further, the Developer was also directed to pay to the Complainant - interest @ 12% p.a. on the amount of Rs.1,29,60,000/- after 18.06.2006 till the delivery of possession of the Villa; Rs.1,00,000/- as compensation for mental agony and harassment; and Rs.11,000/- as litigation costs.

First Appeal No. 212 of 2013 has been filed by the Complainant for modification of the impugned Order to the effect that in view of the facts that he was paying heavy interest, amounting to Rs.1,25,000/-, every month, to the ICICI Bank and in the event of any default in making the payment of the instalments to the Developer, he was required to pay to the Developer interest @ 18% p.a. compounded every three months as per the Agreement executed between the Parties, in place of interest @ 12% p.a., the State Commission ought to have awarded interest @ 18% p.a. compounded every three months on the deposited amount from the date of payment till possession. First Appeal No. 177 of 2013 has been filed by the Developer for setting aside the impugned Order itself.

Since both the Appeals emanate from the same Order, between the same Parties, these are being disposed of by this common Order.

Vide Agreement dated 18.03.2005 entered into between the Parties, the Villa in question was purchased by the Complainant at sale consideration of Rs.1,44,00,000/-, which also covered the development of Internal Services. According to Clause 29 of the Agreement, the possession was to be delivered to the Complainant within a period of 15 months from the date of the said Agreement, subject to the Complainant paying the amounts due and complying with the terms and conditions of the Agreement. The possession was to be accepted by the Complainant within a period of 30 days from the date of issuance of notice by the Developer, stating that the Villa was complete. However, the Developer did not handover the possession within the time-frame mentioned in the Agreement. Subsequently, on 30.08.2007, the Developer issued a letter to the Complainant, informing him that the Villa would be ready for handing over possession by the end of September, 2007. Despite several visits to the site at Rosewood City, Gurgaon, the Complainant was not able to contact the officials of the Developer and elicit any information with respect to the completion of the Villa or possession thereof. As there was inordinate delay on the part of the Developer in this behalf, vide his communication dated 04.06.2008, the Complainant requested the Developer to deliver the physical possession of the Villa at the earliest but all in vain. Even the Complainant was not able to inspect the Villa despite his repeated visits to the site. On 14.05.2010, the Complainant contacted the officials of the Developer and sought Statement of Account. On receipt of the same on 15.05.2010, the Complainant found that there were incorrect figures with respect to the balance price of the Villa. According to the Complainant, an amount of Rs.1,29,60,000/- was paid by him against the agreed sale price of Rs.1,44,00,000/- and the balance amount was to be paid at the time of delivery of physical possession of the Villa. After about one year, the Developer issued the letter dated 14.04.2011 to the Complainant, claiming the balance amount of Rs.85,25,104/- with respect to outstanding payment of Basic Sale Price (BSP) and other charges. In the said letter, it was also stated that the Villa would be ready for giving possession within 3-4 months and in case the Complainant was not able to sort out the issue, the Developer would directly deal with the ICICI Bank and handover the possession of the Villa on receipt of balance payment from the Bank. In response to the letter dated 14.04.2011, the Complainant vide his letter dated 04.05.2011 intimated the Developer that the balance amount as per the agreement in question would be paid by him when he would receive the offer regarding physical possession of the Villa. With respect to the said demand, it is averred in the Complaint that the same was illegal, inasmuch as the amount due as per the Agreement dated 18.03.2005 was Rs.14,40,000/-, and the Complainant was not liable to pay the amounts asked for in the letter dated 14.04.2011 as also interest thereon as the possession of the Villa had not been offered by the Developer by the said date. It was also stated that some of the amounts were not the part of the Agreement and the said charges were included in the total sale price of the Villa, i.e. Rs.1,44,00,000/-. The Complainant requested the Developer for extending the facility of swimming pool along with additional floor on 2nd floor, for which certain amount, mutually agreed, was to be paid to the Developer but approval therefor was not obtained by the Developer from the Competent Authority. Therefore, the construction of the Villa was not according to the approved/sanctioned Plans.

Alleging deficiency in service on the part of the Opposite Parties No. 1 and 2, the Developer and its General Manager, Sales & Marketing, on the aforesaid counts and stating that the Complainant was paying monthly instalment of Rs.1,25,000/- on the loan amount to the ICICI Bank, the Complainant filed the Complaint before the State Commission. The Complainant had prayed for a direction to the said Opposite Parties to withdraw the illegal demand of Rs.85,25,104/-; deliver the possession of the Villa in question, after completing the development works as per the agreed specifications; pay interest @ 18% p.a. compounded every three months from the date of deposit till the date of possession as also Rs.1,00,000/- on account of mental harassment and Rs.25,000/- towards litigation costs.

Upon notice, Opposite Parties No. 1 and 2 contested the Complaint by filing their Written Version. However, vide order dated 19.10.2012, Opposite Party No.2 was given up and, vide order dated 28.05.2012, Opposite Parties No. 3 and 4, i.e. ICICI Bank and ICICI Home Finance Co. Ltd., were proceeded against ex-parte before the State Commission.

On behalf of the Developer, it was pleaded that it was a Company, incorporated and registered under the Companies Act, 1956, and had obtained license from the Town & Planning Department, Haryana, to develop the Colony, known as "Rosewood City", under the relevant provisions of Haryana Development and Regulations of Urban Areas Act, 1976. By means of the Complaint, the Complainant wanted specific performance of the Agreement dated 18.03.2005, without fulfilling his obligations and paying the balance amount. In view of Clause 53 of the Agreement, which provided that High Court of Delhi alone shall have jurisdiction in all matters arising out of or concerning the transaction in question, the State Commission did not have the jurisdiction to try and adjudicate upon the Complaint. The entire dispute between the parties, which pertained to breach or otherwise of the terms and conditions of the Agreement, was a contractual dispute and hence the provisions of the Consumer Protection Act, 1986, were not attracted, as no legal right had accrued to the Complainant. The possession was to be delivered to the Allottee, on his paying amounts due under the Agreement in question, and, as per Clause-5 of the Agreement, in case of any default on the part of the Allottee in paying the said amounts, the Developer had a right to cancel the Agreement and forfeit the earnest monies paid by the Allottee. Further, as per Clause 13 of the Agreement, the Developer was also entitled to take suitable action for recovery of dues and damages, which might have been suffered by the Developer, and withdraw all or any of the facilities. The Developer was to deliver the possession of the Villa within a period of 15 months from the date of the Agreement, on compliance of all the terms and conditions of the Agreement and payment of the amounts due by the Complainant, but the Complainant miserably failed to take possession of the Villa and pay the additional costs for alterations, modifications and additional construction on the Second Floor, as requested by him, for which he was liable to pay compensation as holding charges @ Rs.5/- per sq. ft. of the super area, per month for the entire period of such delay. The Complainant was aware of paying interest @ 18% p.a. compounded every three months in the event of late payments due in terms of the Agreement. As the Agreement was entered into by the Complainant with full knowledge, understanding the contents, limitations and obligations on the part of the Parties, there was no misrepresentation by the Developer at any point of time and the averments to the effect that it was not having the required sanctions is a mere afterthought. The Complainant was bound by the terms of the contract and could not raise any claim beyond the scope of the Agreement in question. The letter dated 04.06.2008 sent by the Complainant to the Developer, praying for delivery of possession of the Villa at the earliest, was never received by the Developer and, vide letter dated 28.02.2008, the Complainant was intimated by the Developer to take possession after clearing all the dues but he did not do so. It was because of modifications/ alterations/ additional constructions, for which the Complainant had requested, that the completion of the Villa was delayed. The Complainant never approached the Developer for inspection of the Villa. On 14.05.2010, at 11.18 a.m., the Complainant had sent an email, stating that he would be reaching the site at 12.30 p.m., for which no prior appointment was taken by him. As per the standard layout plans, the cost of the Villa was Rs.1,44,00,000/-, but in view of additional constructions, for which the Complainant had requested and agreed to pay the additional cost, an amount of Rs.21,70,650/- was to be incurred by the Developer, vide letter dated 14.12.2005, the Complainant was communicated about the same and, accordingly, the cost of the Villa increased by the said additional amount. The outstanding amount as on 14.04.2011 was Rs.85,25,104/- and as on 30.06.2012 Rs.97,18,956/-. The Complainant was offered possession way back in February, 2008, but since he did not take the same, the Villa remained closed and for making the same habitable again, 3-4 months were required. There was no deficiency in Service, Unfair Trade Practice and violation of the terms and conditions of the Agreement in question, on the part of the Developer and, accordingly, the Complaint was liable to be dismissed.

On appreciation of the evidence adduced by the Parties before it, the State Commission, as noted above, allowed the Complaint and issued the aforesaid directions to the Developer. It was observed by the State Commission as under:-

" There is no evidence on the record to show that the Complainant was liable to pay to the Opposite Party for any additions or alternations in the Villa. Hence, the demand raised by the Opposite Parties beyond the actual price of Rs.1,44,00,000/- of the Villa as per agreement is illegal, arbitrary and unjustified. As per the agreement dated 18.03.2005, the price of the Villa was fixed at Rs.1,44,00,000/- out of which the Complainant had already paid Rs.1,29,60,000/- being 90% of the consideration price and the balance amount of Rs.14,40,000/- representing 10% was payable by the Complainant on possession but the Opposite Party No.1 failed to deliver the physical possession of the Villa to the Complainant till date. In other words, the Opposite Party No.1 has utilized the price of Villa out of the sale price of Rs.1,44,00,000/-. Therefore, the Opposite Party No.1 is liable to compensate the Complainant by way of interest on the deposited amount after the period of 15 months from the date of agreement dated 18.03.2005 till the delivery of possession of Villa to the Complainant. We assess the interest rate @ 12% p.a. on Rs.1,29,60,000/- w.e.f. 18.06.2006 till the date of delivery of possession of Villa to the Complainant. As the Opposite Party No.1 has harassed the Complainant by not delivering the possession of the Villa, therefore, the Complainant is entitled for compensation on this count which we assess at Rs.1,00,000."

Hence, the present cross Appeals by both the Complainant and the Developer.

We have heard the learned Counsel for the Parties at length and also perused the material available on record as well as Written Submissions filed by the Parties.

Learned Counsel appearing for the Complainant vehemently submitted that the Complainant had purchased the Villa in question from the Developer for a total consideration of Rs.1,44,00,000/- and entered into an Agreement on 18.03.2005. The Complainant, after obtaining the loan from the ICICI Bank, paid a sum of Rs.1,29,60,000/- to the Developer. As per Clause 29A of the Agreement, the possession of the Villa was to be handed over to the Complainant within 15 months from the date of Agreement, i.e. latest by 18.06.2006. Initially, the Agreement was for construction of ground floor and first floor. Complainant requested the Developer to change the size of swimming pool, provide extra built-up area on 2nd floor and to make some other changes at Ground Floor as well as First Floor. The Developer agreed for the said changes and demanded extra costs of Rs.21,70,650/- vide their letter dated 31.08.2006. Vide letter, dated 31.01.2007, the Complainant was informed that construction of the Villa as per changed layout plan would be completed by May, 2007. However, the Developer, despite the repeated requests, had failed to deliver the possession of the Villa till the year 2011. The Developer, vide its letter dated 14.04.2011, while demanding a sum Rs.85,25,104/- (including interest) from the Complainant towards outstanding consideration had informed to him that Villa would be ready for possession within 3 to 4 months. It is further argued by him that during the pendency of the Appeal before this Commission, the subject Villa was auctioned by ICICI Bank on 15.11.2013 for an amount of Rs.4,62,00,000/- and after adjusting their alleged due to the tune of Rs.3,17,06,106/-, they had deposited the balance amount of Rs.1,44,93,894/- with the Developer. However, in the case filed by the Bank, the Debts Recovery Tribunal (for short, the "DRT"), vide its order dated 30.01.2014, had directed to the Complainant to pay a sum of Rs.2,88,70,992/- to the Bank and as such they are liable to refund the balance proceed. The Complainant had also paid an amount of Rs.1,36,50,238/- to the ICICI Bank @16.25% interest in terms of the Account Statement dated 06.01.2014 issued by the them. The application for the release of the excess amount received by the Bank, is already pending for consideration before this Commission. He further emphatically contended that the ICICI Bank had only auctioned Ground Floor and First Floor of the Villa and not the Second Floor which fact can also be established from the Auction Notice. Further, in the affidavit filed by the Developer on 13.10.2017 in compliance with the order, dated 30.08.2017 passed by this Commission, it has been mentioned that the Occupation Certificate Memo No. 5680 dated 25.10.2006 has been received wherein permission was granted for occupation of Villa No.25, Block - B, Grand Mansion, Rosewood City, Gurgaon after the alterations and modifications as demanded/requested by the Respondent. It is submitted that the Developer has not sold the Second Floor and has also kept the extra money of Rs.1,44,93,894/- received from the Bank. Therefore, the Developer is liable to refund an amount of Rs.1,44,93,894/- to the Complainant with interest @ 18% p.a. quarterly compoundable from the date of auction i.e. 15.11.2013 till the date of actual payment. Besides, the Developer is also liable to pay a sum of Rs.1,29,60,000/- with interest @ 18% quarterly compoundable from 18.06.2006 as the Developer has failed to deliver the possession of the property. Placing reliance upon the judgement of the Hon'ble Supreme Court in the case of GDA Vs. Balbir Singh - 2004 (5) SCC 65 and the judgements passed by this Commission in Puneet Malhotra Vs. Parsvnath Developers - Consumer Complaint No. 232 of 2014 - decided on 29.01.2015 and Manoj Kumar Jha Vs. Unitech Ltd. - Consumer Complaint No. 487 of 2014 decided on 18.01.2016 , learned Counsel for the Complainant argued that as the Developer had charged interest @ 18% p.a. quarterly compoundable, they are also liable to pay the same rate of interest to the Complainant on the amount to be refunded by them.

On the contrary, learned Counsel for the Developer submitted that the impugned Order passed by the State Commission is liable to be set aside as the State Commission has failed to appreciate the facts of the case and erred in believing the misleading statements. He further pleaded that as per Clause 5 of the Agreement, timely payment of all the dues/instalment was the essence of the Agreement; in terms of Clause 13 of the Agreement, the Developer was entitled to take suitable action for recovery of all dues besides claiming damages suffered by them; Complainant was bound by the terms and condition of the Agreement, however, this fact has been ignored by the State Commission; Clause 29 (a) of the Agreement stipulated that the Company would endeavour to deliver possession of the said Villa to the Allottee within a period of 15 months from the date of the Agreement provided the Allottee has complied with all terms of the Agreement and all the amounts due and payable by the Allottee under the Agreement have been paid on time to the Company; it was also agreed between the parties that the Complainant shall take possession of the said Villa within 30 days from the date of offer of possession; the Complainant was a habitual defaulter in clearing his dues on time; possession of the Villa was offered to the Complainant way back on 28.02.2008 but as he had not taken the possession of the Villa within 30 days from the date of offer of possession, he was also liable to pay the holding charges @ Rs.5/- per sq. ft. of the super area for the entire period of delay; the additional costs of alteration/modification in the layout plan of Villa was agreed to be borne by the Complainant but the same has not been paid by him till today; it was informed to the Complainant that an additional amount of Rs.21,70,650/- would be incurred towards the additional construction and in case he failed to clear the outstanding dues he would be liable to pay penal interest on the said amount in terms of clause 33 of the Agreement; vide letter dated 05.05.2011, the Complainant was informed that Villa was ready for possession and offer for possession was made to him on 28.02.2008; in Director General (Investigation and Registration) Vs. DLF Universal Ltd. - III (2004) CPJ 4 (MRTP), it was held that the time mentioned in the contract for handing over possession was only the expected time which depended on various factors including payment of instalments to be made by the Allottee and since the Allottee had defaulted in making the payments in time, the Developer cannot be held liable for any delay in possession; a sum of Rs.46,167/- was paid towards Compounding fee to the Senior Town Planner Cum Chairman, Building Composition Committee, Gurgaon for approval of the additional construction and modification; the ICICI Bank exercising its power under Section 13(4) read with Rule 8 of the Security Interest (Enforcement) Rules, 2002, took symbolic possession of the said Villa as the Complainant failed to clear its dues; vide letter, dated 27.08.2013, the Developer informed the Bank that an amount of Rs.1,19,59,239/- was due and payable by the Complainant as on 13.08.2013; the Bank had lien over the additional construction on the Second Floor and the modifications and alterations carried out at the Villa on the request of Complainant; though the Bank in the Auction Notice disclosed that the Villa comprises of Ground Floor and First Floor but simultaneously stated in the same very Auction Notice that the entire Villa is being sold on "As is where is basis" and ''As it what is basis"; the Second Floor is an integral part of the Villa itself and cannot be sold or utilized independently/separately as it does not have an independent access; the Villa was auctioned by the Bank under the provisions of SARFESI Act, 2002; out of Rs.1,44,93,894/- received from the Bank by the Developer, a sum of Rs.1,25,49,427/- was on account of amount due and payable by the Complainant and Rs.20,62,592/- was paid by the Auction Purchaser for transfer of the said property and accordingly the Conveyance Deed was executed in his favour; challenging the auction and Conveyance Deed, the Complainant filed a Securitization Application before DRT-I, Chandigarh (now DRT II- Chandigarh) which is pending for consideration.

It is undisputed that the Complainant had purchased Duplex Villa No. 25 in Block "B" admeasuring 525 sq. yards at Grand Mansion, Rosewood City, Gurgaon from the Developer for a total consideration of Rs.1,44,00,000/- out of which he paid Rs.1,29,60,000/- i.e. the 90% of the total consideration. Accordingly, an Agreement was executed between the parties on 18.03.2005. As per Annexure "A" of the Agreement, the balance 10% i.e. Rs.14,40,000/- was to be paid by the Complainant to the Developer on offer of possession. It is also not disputed that the Complainant had availed of loan facility from the ICICI Bank to make the payment to the Developer towards the consideration of the Villa. As per Clause 29(a) of the Agreement, the possession of the Villa was to be delivered to the Complainant within a period of 15 months from the date of Agreement, i.e. latest be 18.06.2006. According to the Developer, they offered possession to the Complainant on 28.02.2008. However, denying it the Complainant has stated that the Developer vide its letter dated 14.04.2011 has informed to him that the Villa would be ready for possession within 3 to 4 months. It is also an admitted fact that during the pendency of the Appeal, the Bank has auctioned the said Villa on 15.11.2013 for an amount of Rs.4,62,00,000/- and after adjusting an amount of Rs.3,17,06,106/- to be paid by the Complainant against the loan, they had deposited a sum of Rs.1,44,93,894/- with the Developer. Under these circumstances, the question to direct to the Developer to hand over possession of the Villa to the Complainant, in terms of the Agreement dated 18.03.2005, does not arise.

So far as, the dispute with the ICICI Bank in relation to settlement of loan Accounts of the Complainant is concerned, the Bank had filed O.A. No. 44 of 2013 on 11.02.2013 before the Debts Recovery Tribunal-I, Delhi against the Complainant/co-borrowers and the Developer claiming a sum of Rs.2,88,70,992/- along with interest @ 12.75% p.a. Vide its order, dated 30.01.2014, the DRT has directed the Complainant/co-borrowers to pay a sum of Rs.2,88,70,992/- to the ICICI Bank along with interest @ 11.5% p.a. (simple) from the date of filing of OA till actual date of realisation. As the Complainant has failed to pay the dues of the ICICI Bank in terms of the DRT order, the Bank exercising its lien upon the property in question, auctioned the same on 15.11.2013 for an amount of Rs.4,62,00,000/-. As such, the Bank was entitled to adjust the amount against the proceed of the property in terms of the directions issued by the DRT. We order accordingly.

Now, core question for consideration before us is as to whether the Complainant is entitled for refund of the entire amount deposited by him including the excess amount of the proceed of the said Villa or the Bank was justified in its action in depositing the excess proceed with the Developer?

It is the contention of the learned Counsel for the Developer that initially the Ground Floor and the First Floor was to be constructed on the plot by the Developer. However, vide letter dated 14.12.2005, the Complainant had requested the Developer to increase the size of the swimming pool, make certain changes as discussed on Ground Floor and First Floor and to build up extra area at Second Floor. On 07.01.2006, the Complainant had conveyed his consent for additional construction and requested to commence the construction at the Second Floor at the mutually agreed rate of Rs.1,350/- per sq. ft. By letter, dated 31.08.2006, the Complainant was informed that the total extra cost payable for the suggested changes and extra construction area would come to Rs.21,70,650/-. Further, the Developer, vide its letter dated 31.01.2007, had intimated to the Complainant that due to the changes requested by him, the construction of the Villa as per changed layout plan would be completed by May, 2007. On 23.02.2007, the Complainant was requested to remit the amount of Rs.21,70,650/- towards the additional construction carried out by the Developer on his request. Again, on 26.07.2007, the Complainant was requested to clear the outstanding amount of Rs.21,70,650/- and was also apprised that failure in payment of the said amount would attract the interest @ 18% p.a. compounded quarterly, in terms of Clause 33 of the Agreement. However, despite the repeated requests, the Complainant did not clear his dues. Since the reliance has been placed by the Developer on letter dated 28.02.2008 in support of its contention that the offer of possession was made to the Complainant by the said letter, it is pertinent to extract the contents of the letter which are as under:-

" We are pleased to inform that Duplex Villa No. 25 in Block "B", admeasuring 525 sq. yards (6119 sq. ft. approx. super built up area) at Grand Mansion, Rosewood City, Gurgaon is ready for possession. Towards the said Villa, please find enclosed herewith a final Statement of Account.

To enable us to offer you the possession, you are requested to remit an amount as per the statement."

By letter dated 28.02.2008, the Complainant was requested to make the payment of Rs.46,81,894/- which included the interest charged for delay in payment. On 14.05.2010, the Complainant was informed that he was liable to pay a sum of Rs.89,68,223/-. In reply to the said letter, the Complainant, vide its letter dated 18.05.2010, informed the Developer that only a sum of Rs.14,40,000/- remained to be paid by him and further requested them not to charge alleged late payment, holding charges, interest free maintenance charges, interest free external charges, interest free contingency deposit as there was delay on their part to deliver the possession in terms of the Agreement. He also requested for waiving of remaining amount of Rs.14,40,000/- since he was paying interest to the bank of Rs.1,25,000/- per month since March 2005. It is the stand of the learned Counsel for the Complainant that vide letter dated 14.04.2011, the Developer has informed that the "Villa shall be ready for possession within 3-4 months" which substantiate that the Developer has miserably failed to complete the construction and to hand over the possession of the Villa in terms of the Agreement. Since the balance consideration of Rs.14,40,000/- was payable at the time of offer of possession, the Developer has illegally charged the interest and other charges. By email dated 04.05.2011, the Complainant informed the Developer that the outstanding amount as per the Agreement would be made only on receiving official offer letter on the readiness and physical possession of the Villa.

During the pendency of the Appeals, the Complainant has filed IA No. 7467 of 2014, seeking a direction to the Developer to refund the amount of Rs.1,44,93,894/-, received by it from the ICICI Bank, after adjustment of its loan amount against the proceeds of the auctioned property in question, to which reply has been filed by the Developer. In its reply, the Developer has stated that the title of the property was never transferred in favour of the Complainant and he was never the owner of the said property. As the Complainant has failed to repay the loan amount, the Bank had auctioned the property. The Bank, vide letter dated 26.11.2013, asked for the breakup of the outstanding amount to be paid by the Complainant and it was informed to the Bank by letter dated 29.11.2013 that an amount of Rs.1,46,12,019/- was outstanding against the Developer.

In order to appreciate the rival stands of the parties, vide Order, dated 03.07.2015, the Developer was directed to file a complete Statement of the Account of the Complainant, in tabulated form. As per the Statement of Account filed by the Developer on 06.08.2015, an amount of Rs.1,39,03,230/- was payable by the Complainant which includes principal amount of Rs.36,10,650/- ( Rs.14,40,000/- being 10% of total consideration + Rs.21,70,650/- being cost of additional construction) and interest of Rs.1,17,22,513/- and some other expenses.

Further, vide Order, dated 30.08.2017, the Developer was directed to furnish the following information:-

(i) the date of the launch and bookings in the Project in question;

(ii) the date of submission of construction drawings for sanction by the Competent Authorities;

(iii) the date on which the drawings were sanctioned and received by the said Appellant;

(iv) the date when all requisite clearances, including the Occupation/ Completion Certificates, were applied for and received by the Appellant from the Authorities concerned;

(v) the total amount(s) received by the Appellant in the account of the Complainant from all the sources, with date of each deposit, viz. directly from the Complainant or from the Bank; an

(vi) a complete statement of account of the Complainant in the Books of Account of the Appellant.

The relevant paras of the affidavit filed in compliance with the order dated 30.08.2017 are as under:-

"5. I say that the said project was launched around October, 2004.

I say that the standard construction drawings/sanction drawings pertaining to Villa No.25, Block-B, Grand Mansion, Rosewood City, Gurgaon were submitted with the competent authorities in February, 2005.

I say that the construction drawings/sanction drawings pertaining to Villa No.25, Block B, Grand Mansion, Rosewood City, Gurgaon were sanctioned by the District Tower Planner, Chairman, Building Plans Committee for Licensed Colony controlled Area, Gurgaon vide Memo No.1465 dated 15.03.2005.

I say that the Occupation Certificate with respect to Villa No.25, Block B, Grand Mansion, Rosewood City, Gurgaon was received by the Appellant herein vide Memo No.5680 dated 25.10.2006 issued by Senior Town Planner Cum Chairman Building Composition Committee, Gurgaon.

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I say that the Respondent vide his letter dated 14.12.2005 had requested the Appellant to carry out alterations in the said Villa. The alterations and modifications as requested by the Respondent were (a) the swimming pool size to be increased, b) certain changes on the Ground Floor and First Floor and c) Extra Built up area on the Second Floor. I say that the Appellant received the Occupation Certificate Memo No.5680 dated 25.10.2006 issued by the Senior Town Planner Cum Chairman Building Composition Committee, Gurgaon wherein permission was granted for occupation of Villa No.25, Block-B, Grand Mansion, Rosewood City, Gurgaon after the alterations and modifications as demanded/ requested by the Respondent. I say that the Appellant further paid a compounding fee of Rs.46,167/- with respect to the alterations and modifications demanded/requested by the Respondent."

As per the Statement of Account filed in compliance with the Order dated 30.08.2017, the balance amount payable by the Complainant was Rs.1,46,12,019.00. However, I.A.No.15670 of 2017 has been filed by the Complainant for taking action against the Developer for not filing the affidavit in compliance with the order dated 30.08.2017.

It is not in dispute that the Complainant, Mr. Sunil Bansal had paid a sum of Rs.1,29,60,000/- to the Developer upto 18.06.2006. The Developer was required to change the size of the swimming pool, provide extra built-up area on Second Floor and to make certain changes at Ground Floor as well as the First Floor on payment of extra costs of Rs.21,70,650/-. The additional construction as agreed between the Parties was not done by the Developer and the Plan was also not got sanctioned for extra work. Further, the ICICI Bank which had given home loan to the Complainant had sold the said Villa by way of auction in the proceedings under the SARFESI Act, 2002. The Villa which was put to auction comprised of Ground Floor and First Floor only as per the Auction Notice. However, the Title Right in the Second Floor of the Villas was also sold by mean of auction as the entire Villa had been transferred in favour of the Auction Purchaser. The Villa was sold for Rs.4,62,00,000/- and after adjusting the amount payable by the Complainant along with interest i.e. Rs.3,17,06,106/-, the ICICI Bank deposited the balance excess amount of Rs.1,44,93,894/- with the Developer.

Undoubtedly, as per Clause 29 of the Agreement, the possession of the Villa was to be handed over to the Complainant within a period of 15 months from the date of the Agreement, i.e. latest by 18.06.2006. As per the Mode of Payment attached with the Agreement, the balance consideration of Rs.14,40,000/- was to be paid by the Complainant at the time of actual offer of possession. Further, as the changes in the Villa as requested by the Complainant, were not carried out by the Developer, Complainant was also not liable to pay the extra costs. The Developer has miserably failed to construct and hand over the possession of the Villa to the Complainant within the prescribed time. It has been admitted by the Developer, vide its letter dated 14.04.2011, that the Villa shall be ready for possession within 3-4 months. The physical and vacant possession of the Villa in question was not handed over to the Complainant till it was auctioned by the Bank. Having relied upon the law laid down by the Apex Court in recent judgments in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan - II (2009) CPJ 34 (SC) and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, we are of the considered opinion that the Complainant is entitled for refund of the amount paid by him to the Developer with interest and reasonable compensation for being deprived of the use of his hard earned money during this period. It is argued by the learned Counsel for the Complainant that since the Developer was to charge interest for default in payment @ 18% p.a. quarterly compoundable, they ought to be liable to pay the same rate of interest on the amount to be refunded to the Complainant. In support of his contention, he has placed reliance upon the judgment of the Hon'ble Supreme Court in the Ghaziabad Development Authority's case (Supra) wherein interest @ 18% was awarded towards compensation for the harassment and agony caused to the Allottee. However, having regard to the fact that the Banks have lowered the interest rate and the Hon'ble Supreme Court has been awarding interest keeping in view the current market situation and the recent decline in the cost of borrowing and return on the investments made with the Bank, in our view, the compensation @10% p.a. would meet the ends of justice. While arriving at this conclusion, we have also kept in mind the principles of restitutio in integrum which provides for restoration of an affected party to the situation which would have prevailed had no wrong or injury been sustained.

In view of the foregoing discussion, the impugned order passed by the State Commission is modified to the extent that the Complainant is entitled for refund of amount of Rs.1,29,60,000/- along with compensation @10% p.a. from 18.06.2006 till the actual date of realization. The said amount shall be paid by the Developer within a period of one month from the date of receipt of a copy of this Order failing which the amount shall carry compensation @12% p.a. The Developer shall also pay a sum of Rs.25,000/- as costs to the Complainant within the same period.

Consequently, the First Appeal No. 212 of 2013 filed by the Complainant for enhancement of the compensation and the First Appeal No. 177 of 2013 filed by the Developer for setting aside the impugned order are disposed of in above terms.