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Judgment
V.K. Jain, J
The complainant booked a residential flat with the OP in a project, namely, "Crescent ParC" , which the OP was to develop in Sector 92 of Gurgaon. Flat No.P020601 in Building No.P02 of the aforesaid project was allotted to him for a total consideration of Rs.9339600/- which included allied charges amounting to Rs.18018000/-. The following was the payment plan agreed between the parties:-
"Stilt + 19 floors Building
Plan A "Construction Link Plan
Percentage
1
At the time of booking
10% of SP
2
Within 60 days of booking
10% of SP
3
On commencement of construction
10% of SP
4
On start of Plinth level of Tower in which unit is booked
7.5% of SP + 25% Allied charges
5
On start of 3rd Floor Roof Slab of Tower in which unit is booked
7.5% of SP
6
On start of 6th Floor Roof Slab of Tower in which unit is booked
7.5% of SP + 25% Allied charges
7
On start of 9th Floor Roof Slab of Tower in which unit is booked
7.5% of SP
8
On start of 12th Floor Roof Slab of Tower in which unit is booked
7.5% of SP + 25% Allied charges
9
On start of 15th Floor Roof Slab of Tower in which unit is booked
7.5% of SP
10
On completion of super structure frame works
7.5% of SP
11
On competition of internal plaster of Tower in which the unit is booked
5% of SP
12
On start of plumbing, flooring and tiles work
7.5% of SP + 25% Allied charges
13
On offer of possession
5% of SP"
The parties executed an agreement dated 20.9.2012 incorporating their respective obligations in respect of the aforesaid transaction. In terms of clause 3.3 of the said agreement, the possession was to be delivered within 36 months from the commencement of construction, though a grace period of six months was also available to the OP. According to the learned counsel for the OP, the construction commenced on 10.12.2012. The grievance of the complainant is that the possession has not been even offered to him and the construction is not complete, despite he having already paid Rs.8516413/- to the OP. The complainant is therefore, before this Commission seeking refund of the aforesaid amount along with compensation etc.
The complaint has been resisted by the OP which has admitted the allotment made to the complainant as well as the payment received from him. It has been alleged that there was an outstanding amount of Rs.385913/- against the complainant, which he did not pay, despite reminders dated 16.1.2015 and 11.3.2015.
Going by the date, given by the learned counsel for the OP, the construction of the flat should have been completed by Dec., 2015 or latest by June, 2016 even after availing the grace period of six months. It is an admitted position that even today the construction of the flat is not complete. The learned counsel for the OP states that some finishing work such as lying of tiles has still left and they are yet to apply for obtaining the requisite Occupancy Certificate. He further states that in terms of the time granted under RERA, the OP can complete the construction of the project by March 2019.
The first question which arises for consideration is as to whether there was a default on the part of the complainant in meeting his contractual obligation with respect to the sale consideration to the OP. As would be seen from the payment plan agreed between the parties, the complainant was to pay 5% of the sale price at the time of offer of possession. The said stage is yet to reach. The case of the OP is that there was an outstanding amount of Rs.385913/- against the complainant. Since the 12th instalment envisaged payment of 7.5% of the sale price plus 25% allied charges, it is evident that the entire 12th instalment has not been paid and only part payment of the 12th instalment has been made. The 12th instalment as would be seen from the payment plan, was payable on start of plumbing, flooring and tile work. The demand for the 12th instalment however was raised prior to January 2015 since this is the case of the OP that there was outstanding amount of Rs.385913/- despite reminders sent in January 2015 and March 2015. There is no evidence of the OP having even started the plumbing work and flooring and tile work by January 2015 when the first reminder is alleged to have been issued.
No report of an architect has been filed to prove that the construction had reached the stage of plumbing, flooring and tile work in or before January 2015. In fact, there is not even an allegation in the written version of the OP that the construction had reached the above-refereed level by January 2015 when the first reminder was issued. Even the tiling work is yet to be completed as is stated by the learned counsel for the OP. It is therefore, obvious that the stage for demanding the 12th instalment had not even reached by January 2015. Had the project reached the stage of starting of plumbing, flooring and tile work by January 2015, the entire project would have been completed long ago since almost four years have lapsed since January 2015. It is therefore, obvious that the demand of the 12th instalment which was payable on start of plumbing, flooring and tile work was not at all justified and was not in consonance with the payment plan agreed between the parties. The complainant therefore, was not required to pay the said instalment. Hence the complainant cannot be said to be in default in making payment to the OP.
Moreover, in case the complainant was in default as is alleged by the OP, nothing prevented it from cancelling the allotment on the aforesaid ground and refunding the balance amount after forfeiting the earnest money of the complainant. That having not been done, the alleged default is deemed to have been condoned by the OP.
Though the OP claims to have been given time till 2009 by RERA Authority to complete the construction, that would not take away the contractual obligation of the OP as contained in the Buyers Agreement between the parties. The OP having not offered possession to the complainant within three and a half years of the commencement of the construction, or even in a reasonable time thereafter the complainant is entitled to seek refund of the amount paid by him to the OP along with appropriate compensation in the form of interest etc.
The learned counsel for the OP states that the direction for refund of the payment at this stage when the project is 90% complete, will not be healthy for the project since it would create precedent for the other flat buyers to comes out with similar demands. However, in my view, considering the abnormal delay on the part of the OP in completing the project, the complainant cannot be compelled to wait any more irrespective of the impact it would have on the project or on the other flat buyers. The OP can always dispose of the flat which was allotted to the complainant to other potential buyers in the market in order to make refund to the complainant.
No evidence has been led by the complainant to prove the actual loss suffered by the complainant. The complainant who is present in the Court states that considering the interest rates prevalent at the relevant time, he is restricting his claim to the refund of the principal amount along with interest @ 10% per annum from the date of each payment till the date of refund of the amount.
The complaint is, therefore, disposed of with the following directions:-
(i) The opposite party shall refund the principal amount of Rs.8516413/- to the complainant along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.
(ii) The opposite party shall pay Rs.25,000/- as cost of litigation to the complainant.
(iii) The payment in terms of this order shall be made within three months from today.