Santosh Kataria vs Paarsavnath Hessa Developers Pvt. Ltd. & Anr

V.K. Jain, J

Mrs. Rajashree Nanda and Mr. Krishna Prasad Sahu booked a residential apartment with the OP in a project namely 'Parsavnath Exotica' which the OP was to develop in Sector-53 of Gurgaon. Flat No. 1003 in Tower B-5 of the said project was allotted to them for a basic price of Rs.2,13,73,950/-. They executed the Flat Buyers Agreement dated 18.03.2010 with the OP Parsavnath Developers Ltd.

Clause 10 (a) of the agreement pertains to the delivery of possession. To the extent it is relevant, the said clause reads as under:

"10 (a) Construction of the Flat is likely to be completed within a period of thirty six (36) months of commencement of construction of the particular Block in which the Flat is located or 24 months from the date of booking of the flat, whichever is later, with a grace period of six (6) months, on receipt of sanction of building plans/ revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/ work force etc. and circumstances beyond the control of the Developer and subject to timely payments by the Flat Buyers........."

It would thus be seen that the construction was required to be completed within 36 months of commencement of the construction of block B-5, in which the flat was located or within 24 months from the booking of the flat, whichever was later, with a grace period of six months, though of course subject to force majeure circumstances mentioned hereinabove.

The construction of Tower-B had commenced in August 2010 as would be evident from the fact that the OP itself gave special rebate on account of the delay, to the allottee for the period from September 2013 to December 2017.

The said allotment was purchased firstly by one Mr. Subhash Gupta and then by the complainant Santosh Kataria. The transfer of the allotment in her name was duly approved by the OP.

Since the possession of the allotted flat has not been offered to the complainant despite she having already paid Rs.2,21,74,350/- to the OP, the complainant is before this Commission seeking possession of the said flat with completion certificate etc. and in the alternative, refund of the amount paid to the OP alongwith compensation etc.

The OP has filed written version contesting the complaint but it is an admitted position before me that the complaint has been resisted on the grounds which this Commission has already rejected in several other Consumer Complaints including Consumer Complaint No. 1878 of 2016 Rohit Agarwal & Anr. Vs. M/s Parsvnath Developers Ltd. & Anr. decided on 30.07.2018. The said decision was later followed by this Commission in several other Consumer Complaints pertaining to this very project.

The decision of this Commission in Rohit Agarwal (supra) to the extent it is relevant, reads as under:

"2. The OP has filed written version resisting the complaint but has admitted the allotment made to their predecessor in interest as well as the transfer of the said allotment in favour of the complainants. The payment received in respect of the above-referred flat has also not been disputed by the OPs. It is alleged that the construction was delayed on account of the reasons beyond the control of the opposite party. The aforesaid reasons are stated to be (i) lack of adequate sources of finance (ii) shortage of labour (iii) rise in manpower material cost and (iv) approval and procedural difficulties.

The grounds on which the complaint has been resisted have already been rejected by this Commission in Consumer Complaint No. 91 of 2009 Col. Rajyavardhan Singh Rathore Vs. M/s. Parsvnath Developers Ltd. decided on 21.1.2016 and Consumer Complaint No.127 of 2017 - Mallika Raghavan Vs. Parsvnath Developers Ltd. decided on 19.4.2018. The decision of this Commission in Mallika Raghavan (supra) to the extent it is relevant, reads as under:-

"4. The learned counsel for the complainant has drawn my attention to the decision of this Commission dated 21.1.2016 in Consumer Complaint No. 91 of 2009 Col. Rajyavardhan Singh Rathore Vs. M/s. Parsvnath Developers Ltd., wherein the opposite party had allotted a flat in Tower D-4 of this very project to the complainant therein but had failed to deliver possession of the said flat to hm. The complaint instituted by Col. Rajyavardhan Singh Rathore was resisted by the opposite party, primarily on the ground that the recession had hit Indian economy over past two years and Real Estate Sector was one of the worst hit sectors, as a result of said slow down. The aforesaid plea taken by the opposite party was rejected by this Commission, noticing that the slowdown in the economy was not one of the grounds which could justify the delay in completion of the construction, since Clause 10(a) of the Agreement between the parties referred only to restrictions/ restraints from any Court / Authority, non-availability of building material, disputes with contractors / workforce etc., and the circumstances beyond the control of the developers. It was noted that there was no evidence of the opposite party having constraints on account of such a reason in carrying out or completing the construction of the flat. It was further noticed that there was no evidence of non-availability of building material or the opposite party having dispute with any contractor / workforce deployed at the site of the construction. It was held that the delay in completion of the project unjustified. The opposite party was therefore, directed to complete the construction of the flat in all respects, deliver its possession within eight months from the order of this Commission and also pay compensation in terms of the said order to the complainants therein namely Col. Rajyavardhan Singh Rathore.

In my view, lack of adequate sources of finance with the opposite party cannot be a justified ground for the delay in completion of the construction. It was for the opposite party to arrange the finance required for completion of the project within the time stipulated in this regard and it has only to blame itself if it could not arrange the requisite finance. As far as shortage of the labour is concerned, there is no evidence of the labour not being available during the relevant period. Rise in the man power and material cost or approval and procedural difficulties cannot justify the delay in completion of the project."

During the course of hearing, I have asked the learned counsel for the opposite party as to whether they are in a position to deliver possession of the allotted flat to the complainant and whether they have received the requisite occupancy certificate. The learned counsel submits that they have not yet received the occupancy certificate and are not in a position to offer possession of the allotted flat to the complainant though they have cleared the dues which were required for the issuance of the occupancy certificate. He also states that they had applied for the issuance of the occupancy certificate but the same has not been issued so far.

The learned counsel for the complainant states on instructions that considering the abnormal delay which has already happened in this case, the said delay being more than five years, the complainant does not want to wait any more particularly when she is not sure as to when the OP will be in a position to obtain the requisite Occupancy Certificate and then deliver possession with Occupancy Certificate to the complainant. The complainant is also present in the Court and states that instead of waiting for the possession of the flat, she wants refund of the amount paid to the OP in respect of the allotted flat alongwith compensation in the form of simple interest @ 10.75% per annum in terms of Rule 15 of Haryana Real Estate (Regulation And Development) Rules 2017 which inter-alia reads as under:

During the course of arguments, the learned counsel for the OP pointed out that the complainant is residing in a flat in this very project. The complainant who is present in the Court states that the flat in which she is living is a rented accommodation and is not owned by her.

For the reasons stated hereinabove, I hold that the complainant is entitled to refund of the entire amount paid by her to the OP alongwith appropriate compensation. The learned counsel for the complainant has drawn my attention to clause 15 of Haryana Real Estate (Regulation And Development) Rules 2017 which inter-alia provide for payment of interest by the promoter to the allottee at State Bank of India highest marginal cost of lending + 2% where the promoter fails to give possession of the apartment/plot/building in accordance with terms and conditions of agreement for sale in terms of section (4) of section 19. As per the information collected by the complainant from the website of State Bank of India, the maximum marginal cost of lending rate is 8.75%. This is not disputed by the learned counsel for the opposite party. Adding 2% to the aforesaid rate, the complainant, in my view, is entitled to compensation in the form of interest @ 10.75% per annum, from the date of each payment.

The complaint is, therefore, disposed of with the following directions:

(i) The opposite party shall pay the entire principal amount of Rs. 2,21,74,350/- to the complainant alongwith compensation in the form of simple interest @ 10.75% per annum from the date of each payment till the date of refund.

(ii) The opposite party shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

(iii) The payment in terms of this order shall be made within three months from today.