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Judgment
Heard Mr. Nitin Bharadwaj, Advocate, for the complainants, Mr. Sameer Chaudhary, Advocate, for the opposite party.
Satyavrat Ramesh Pendharkar and Mrs. Aishwarya Satyavrat Pendharkar (the complainants) have filed above complaint, for directing the opposite party to (i) refund Rs.18837591/- deposited by them, with interest @20% per annum from the date of respective deposit till the date of refund, (ii) pay compensation of Rs.10/- lacs, for mental agony and harassment, (iii) pay Rs.2/- lacs, as cost of litigation; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainants 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 projects 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 January, 2013 and made wide publicity of the facilities and amenities of the oncoming project. Believing upon the representations and tall promises of the opposite party, the complainants booked a 3BHK+S flat on 28.02.2013 and deposited booking amount of Rs.18.5/- lacs through cheque, which was en-cashed on 12.03.2013. The opposite party issued application form for allotment on 22.03.2013, which was filled up by the complainants and submitted on the same day. The opposite party raised demands of Rs.1871294/-, vide letter dated 14.04.2013, which was paid on 26.03.2013 and Rs.1871294/-, which was paid on 26.04.2013, by the complainants. The opposite party issued Allotment Offer Letter dated 07.08.2013, allotting Apartment No.CD-B-3-10-1003, super area 1920 sq.ft. and executed Apartment Buyer’s Agreement (ABA) on 22.04.2014, in which, basic sale price of Rs.18048752/- ((@ of Rs.9400/- per sq.ft.) was mentioned. Clause-13.3 of the ABA provides, 42 months period from the date of approval of building plan, for offer of possession with grace period of 180 days. Clause-13.5 provides an extended period of 12 months, beyond which, the allottee shall be entitled to opt for termination of allotment. Initially, the opposite party announced “timely payment rebate” but vide letter dated 02.07.2015, withdrew “timely payment rebate”. The complainants opted for “instalment payment plan” which was actually a “construction linked payment plan”. The complainants diligently followed payment plan and deposited instalments on time (except demand dated 01.08.2017, which delayed for 20 days). As per demand of the opposite party, the complainants deposited total Rs.18837591/- till 11.09.2017, i.e. more than basic sale price. The opposite party, vide letter dated 04.08.2016, invited “no objection” for revision of layout plan, from the allottees. The complainants, through email dated 02.09.2016, raised their objection in revision of layout plan. As informed by the opposite party through email, building plan was approved in February, 2014, as such, 48 months period expired in February, 2018. The complainants visited the site and found that the construction was grossly incomplete and not likely to be completed in near future. Extended period also expired in February, 2019. The complainants through email dated 14.02.2019, terminated the agreement and asked for return of their money. However, the opposite party did not respond. Then this complaint was filed on 08.03.2019, alleging deficiency in service.
The opposite party filed its written reply on 09.10.2019 and contested the complaint. The material facts relating to the project, allotment of the apartment to the complainants, execution of ABA dated 22.04.2014 in their favour and payments made by them have not been disputed. The opposite party stated that construction of first phase of the project, which consisted of Tower B-3, in which, the complainants were allotted flat, was completed and the opposite party applied for issue of “occupation certificate” on 05.07.2018, which was issued on 31.05.2019. The opposite party, vide letter dated 14.06.2019, offered possession to the complainants. There was marginal delay in offer of possession, for which, the opposite party, credited delay compensation to the account of the complainants in final demand letter. Supreme Court in IERO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 (decided on 11.01.2021), arising out of same project, directed the allottees, to take possession, to whom possession was offered after issue of “occupancy certificate”. Although Building Plan was approved on 23.07.2013 but it was conditional for obtaining Fire NOC. The opposite party obtained Fire NOC on 27.11.2014. The construction was started thereafter. The opposite party raised first demand for instalment of “Casting Roof Slab” from the complainants on 02.02.2015. As per clauses-13.3 and 13.5, due date of possession was 27.11.2018 and extended date for possession was 27.11.2019, while possession was offered on 14.06.2019. The complainants be directed to take possession, as per letter dated 14.06.2019. Haryana Government has framed Rules and constituted Adjudicatory Authority, under Real Estate (Regulation and Development) Act, 2016. The Act of 2016 is a special enactment on the subject as such the complainants be relegated to go before that authority for their grievances. The project “The Corridor” was registered with the authority under the Act of 2016. Adjudicatory Authority under the Act of 2016, has rejected the prayer for refund of other allottees of the project to whom, the possession was offered and directed them to take possession. The complainants obtained loan from HDFC, after mortgaging the apartment as such, the bank has lien over the property. The bank is necessary party in the complaint. Terms and Conditions of allotment letter dated 07.08.2013 and ABA dated 22.04.2014 are bindings upon the parties and the complainants can claim refund only after 27.11.2019, in case the opposite party, failed to offer possession till then. This Commission has no jurisdiction to alter the terms of the contract. There was no deficiency in service on part of the opposite party and the complaint is liable to be dismissed.
The complainants filed Rejoinder Reply on 21.06.2020, in which, the facts stated in the complaint were reiterated. The complainants filed Affidavit of Evidence of Satyavrat Ramesh Pendharkar and written synopsis.
We have considered the arguments of the parties and examined the record. The dispute of possession/refund with regard to the project “The Corridor” came for consideration before Supreme Court in IERO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 (decided on 11.01.2021). Supreme Court found that Building Plan was approved on 23.07.2013 but it was conditional for obtaining Fire NOC, which was issued on 27.11.2014. The opposite party started construction of first phase, (which consisted Tower B-3, in which, the complainants were allotted flat), thereafter. Demand of instalment was started from January, 2015 from the allottees. After completing the construction, the opposite party applied for issue of “occupation certificate” on 05.07.2018, which was issued on 31.05.2019. The opposite party offered possession to the allottees from June, 2019. The period of 42 months and grace period of 180 days has to be counted from the date of issue of Fire NOC and expired on 27.11.2018. There was no inordinate delay in offer of possession and such allottees were obligated to take possession.
In the present case, the complainants were offered possession vide letter dated 14.06.2019. In the statement of the account, the complainants were also given compensation for delay in possession as per agreement. There was marginal delay in offer of possession, which was well within extended period as per clause-13.5 of the ABA, which was up to 27.11.2019. As held by Supreme Court in IERO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, the complainants are obligated to take possession. However, the complainants are entitled for compensation for delay in possession in the form of interest @6% per annum on their deposit from 27.11.2018 till 14.06.2019 as held by Supreme Court in Wing Commander Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512. It is also required to be stated that the opposite party may charge interest @9% per annum on the balance amount from July, 2019 till the date of payment.
ORDER
In view of aforesaid discussions, the complaint is disposed of directing the opposite party to issue fresh statement of account, giving compensation for delay in possession in the form of interest @6% per annum on the deposit of the complainants from 27.11.2018 till 14.06.2019 and charging interest @9% per annum on its demand dated 19.06.2019, from July, 2019 till the date of payment, within a period of one month from the date of this judgment. The complainants are permitted to deposit the amount within further period of one month. On deposit of the amount, the opposite party shall deliver possession of the flat in dispute, complete in all respect as per specifications and execute title deed in favour of the complainants forthwith.