Sourabh Aggarwal & Anr vs Ats Estates Pvt. Ltd. & Ors

V.K. Jain, Presiding Member

The complainants booked a residential apartment with the opposite party in a project namely "ATS Casa Espana" in Sector 121 of Mohali and then executed an Apartment Buyer Agreement with the OP on 31.3.2005. Vide letter dated 05.4.2016, the complainants expressed their interest in shifting / interchanging to apartment No.11211 and surrendering all their rights in the earlier allotted apartment No.1212. The OP gave its No Objection to the said interchange, subject to No Objection from the AXIS Bank Ltd., from which finance had been arranged by the complainants for the initially allotted apartment. On 22.7.2016, the apartment No.11211 was allotted to them and they executed an apartment buyers' agreement with the OP on 22.7.2016.

As per Clause 6.2 of the agreement, the construction was to be completed within 42 months with a grace period of three months from the date of the agreement. The construction therefore, was proposed to be completed within a maximum period of 45 months from 22.7.2016 when the agreement was executed.

The case of the complainants is that they had changed the apartment on the promise of the OP that it would be constructed earlier in point of time but the construction was not completed within 42 months of the agreement which the complainants had executed in respect of the flat, which the OP had initially allotted to them and in respect of which an apartment buyer agreement was executed by them on 31.3.2015. The complainants are therefore, before this Commission seeking refund of the amount of Rs.1,30,24,161/- paid by them to the OP, along with compensation and interest.

I have heard the learned counsel for the complainants on the maintainability of the complaint and have considered the record. The complainants have not placed on record a complete copy of the agreement dated 31.3.2015, which they had executed with the OP and only two pages of the said agreement have been filed. When this was pointed out to the learned counsel for the complainants, and he was asked whether the complainants could produce the copy of the entire agreement, which they had executed with the OP on 31.3.2015, he stated that the original agreement is with the OP and the complainants had retained photocopies of only two pages, while giving the original agreement to the OP. I however find myself unable to accept the said contention. It is not as if the complainants did not retain copy of any part of the said agreement dated 31.3.2015. It is inconceivable that while returning the original agreement to the developer they would retain copies of only two pages of the agreement running into several pages. The obvious inference is that the complainants do not want this Commission to peruse the entire agreement executed by the parties and the terms agreed between them on 31.3.2015. A person coming to a Court / Forum must necessarily come with clean hands and disclose the entire material relevant to the issue, irrespective of whether such material is favourable or unfavourable to him. The complainants therefore ought to have filed the copy of the entire agreement dated 31.3.2015 executed by them with the OP. They having selectively filed copies of only two pages of the agreement, there is no escape from the presumption that they have not approached this Commission with clean hands.

Even otherwise, the letter sent by the complainants to the OP on 5.4.2016, clearly shows that it were the complainants who had expressed interest in shifting / interchanging of the apartment. There is no material on record to show that the allotment was changed at the behest of the OP. The email sent by the complainant to the AXIS Bank on March 22, 2016 also records that the allotment was changed on his initiative. The complainants executed an apartment buyers' agreement with the OP on 22.7.2016 wherein they agreed that the construction could be completed within a period of 45 months from the date of the said agreement. The period of 45 months form the agreement dated 22.7.2016 would expire only on 21.4.2020. The complainants therefore, are not entitled to seek refund of the amount paid by them to the OP at this stage and they must necessarily wait atleast till 21.4.2020. If the construction is not completed by the OP even till 21.4.2020 only then they would be entitled to approach this Commission for grant of an appropriate relief. But the complaint, as on today, is pre-mature.

There is no material to show that at the time of allotment they had committed to deliver possession within 45 months of the agreement in respect of the first flat. Even if they later on promised delivery at an earlier date, as is submitted by the learned counsel, non-fulfillment of such a subsequent promise after execution of an Agreement stipulating a time period of 45 months for the delivery of possession, will not entitle him to seek refund with interest, as their contractual commitment vide agreement dated 22.7.2016 was to deliver possession within 45 months from 22.7.2016, though he may possibly claim compensation for the delay beyond the date so promised to him.

For the reasons stated hereinabove, the complaint is dismissed with liberty to the complainants to approach this Commission after 21.4.2020 if the construction is not completed by the OP in terms of Clause 6.2 of the agreement dated 22.7.2016, by that date.