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Judgment
V.K. Jain, J
CC/1182/2017
The complainant, namely, Sidhartha Aggarwal booked a residential flat with the opposite party in a project, namely, 'The Corridors', which the OP was to develop in Sector-67A of Gurgaon. Apartment No. D-5-05-504 in Tower-D5 of the said project was allotted to him for a consideration of Rs.24960426/- and he executed a Buyers Agreement with the opposite party on 8.8.2014. The grievance of the complainant is that the possession of the flat has not been offered to him despite he having already paid a sum of Rs.7739576/- to the OP.
CC/136/2018
The complainants, namely, Rupesh Singal and Vandana Singal also booked a residential flat with the opposite party in the above referred project, and flat No. D-3-07-703 in Tower-D3 was allotted to them for a consideration of Rs.24960426/-. They also executed a Buyers Agreement with the OP on 22.4.2014. The grievance of the complainants is that the possession of the flat has not been offered to them despite they having already paid a sum of Rs.10615097/- to the OP.
The case of the complainants is that the possession of the apartments ought to have been delivered to them within 42 months from the approval of the building plans and / or fulfilment of pre-conditions, if any, imposed thereunder, the construction of the apartments is not even complete despite they having made substantial payments to the opposite party. They also point out that even the grace period of 180 days which was available to the OP only for unforeseen reasons beyond their control, expired sometime in the last year. In fact, even the construction of the towers in which their flats were to be located has not even commenced. The complainants are, therefore, before this Commission seeking refund of the amount paid by them to the opposite party along with compensation etc.
The complaints have been resisted by the opposite party which has admitted the allotments made to the complainants as well as the execution of the agreements with them. The payment pleaded by them has also not been disputed. This is confirmed by the learned counsel appearing for the opposite party that the entire payment pleaded by the aforesaid two complainants have been received by them.
The learned counsel for the opposite party states that since sufficient number of applicants did not make booking in the aforesaid two towers, the construction could not commence.
Clauses 43, 44 & 49 of the terms and conditions of the agreement as contained in the applications, read as under:-
"43. Subject to Force Majeure, as defined herein and further subject to the applicant having complied with all its obligations under the terms and conditions of this Agreement and the applicant not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of the total Sale Consideration, stamp duty and other charges prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the applicant within a period of 42 months from the date of approval of the building plans and/or fulfillment of the pre-conditions imposed thereunder ("Commitment Period"). The applicant further agrees and understands that the Company shall additionally be entitled to a period of 180 (6 months) days ("Grace Period"), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control of the Company. Subject to the condition contained herein, if the Company fails to offer possession of the said apartment to the applicant by the end of the Grace Period, it shall be liable to pay to the applicant compensation calculated at the rate of Rs. 7.5/- (Rupees Seven and Fifty Paisa only) per sq. ft. of Super Area ("Delay Compensation") for every month of delay thereafter until the actual date fixed by the Company for offering the possession of the said such 'Delay Compensation' only at the time of 'Notice of Possession' or at the time of payment of the final installment, whichever is earlier.
Subject to the above, in the event of delay by the Company in offering the possession of the said Apartment beyond a period of 12 months from the end of the Grace Period (such month period hereinafter referred to as the 'Extended Delay Period' then the applicant shall become entitled to opt for termination of the Agreement and refund of the actual paid up installment paid by it against the said Apartment. It is clarified that the delay compensation calculated for the fixed period of 12 months only shall be paid by the Company alongwith the installments refundable under this Clause without any interest. This option may be exercised by the applicant only up till dispatch of the Notice of Possession by the Company to the Applicant. No other claim, whatsoever, monetary or otherwise shall lie against the Company nor be raised otherwise or in any other manner by the Applicant.
Notwithstanding anything contained in this Agreement, timely performance by the applicant of all its obligations under this Agreement, including without limitation, its obligations to make timely payment of the Sale Consideration, maintenance charges and other deposits and amounts, including any interest, in accordance with this agreement shall be of essence under this Agreement. If the applicant neglects, omits, ignores, or fails in the timely performance of its obligations agreed or stipulated herein for any reason whatsoever or to pay in time to the Company any of the installments or other amounts and charges due and payable by the Applicant by respective due dates, the Company shall be entitled to cancel the allotment and terminate this Agreement in the manner described hereunder.
Clause 21.3 of the Buyers Agreement on which reliance was placed by the learned counsel for the OPs, reads as under:
21.3 The allottee understands, agrees and consents that upon such termination, the Company shall be under no obligation save and except to refund the amounts already paid by the Allottee to the Company, without any interest, and after forfeiting and deducting the Earnest Money, interest on delayed payments, brokerage/commission/charges, service tax and other amounts due and payable to it, only after resale of the said Apartment. Upon termination of this Agreement by the Company, save for the right to refund, if any to the extent agreed hereinabove, the Allottee shall have no further right or claim against the Company and/or the Confirming Parties which, if any, shall be deemed to have been waived off by the Allottee and the Allottee hereby expressly consents thereto. The Company shall thenceforth be free to deal with the said Apartment in any manner whatsoever, in its sole and absolute discretion and in the event that the Allottee has taken possession of the said Apartment and everything whatsoever contained therein and in such event, the Allottee and/or any other person/occupant of the said Apartment shall immediately vacate the said Apartment and otherwise be liable to immediate ejectment as an unlawful occupant/trespasser. This is without prejudice to any other rights available to the Company against the Allottee".
It would thus be seen that the possession of the apartments ought to have been delivered to the complainants within 42 months from the approval of the building plans and/or fulfilment of the pre-conditions, if any, imposed under the said approved building plans. Though a grace period of 180 days was also available to the builder the same was available only in the event of unforeseen reasons beyond their control.
In view of the decisions of this Commission in CC/190/2017 - Surendra Arora Vs. Ireo Grace Realtech Pvt. Ltd. decided on 18.9.2018 and CC/1998/2016 - Subodh Pawar Vs. Ireo Grace Realtech Pvt. Ltd. & Ors., decided on 24.9.2018 which in fact apply with a stronger force to these two cases, the opposite party having not even started the construction of the towers in which the flats allotted to the complainants were to be located, they are entitled to refund of the amount paid by them to the opposite party along with appropriate compensation in the form of interest.
The complaints are, therefore, disposed of with the following directions:-
(i) The opposite party shall refund the entire principal amount received from the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.
(ii) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation in each complaint.
(iii) The aforesaid payment shall be made within three months from today.