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Judgment
Heard Mr. Sushil Kaushik, Advocate, for the complainants and Ms. Neha Gupta, Advocate for the opposite party.
Supriya Sharma and Narinder Sharma have filed above complaint, for directing the opposite party to (i) refund entire amount deposited by the complainants with interest @18% per annum from the date of deposit till the date of refund; (ii) pay Rs.50000/-, as compensation for mental agony and harassment; and (iii) any other relief which is deemed fit and proper in the facts 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 project. The opposite parties launched a group housing project, in the name of “The Esfera” at revenue estate of villages Garoli Khurd and Basi, Sector-37C, Gurgaon, Haryana in the year 2011 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainants booked a flat on 20.07.2012 and deposited booking amount. The opposite party initially allotted Unit No.201, Tower-F, which was changed as Unit No.501, Floor 5, Tower D, super area 1650 sq.ft. total consideration of Rs.9025979/- and executed Apartment Buyer’s Agreement dated 06.02.2013, in their favour. Payment plan was “construction link payment plan”. As per demand, the complainants paid total Rs.8485087/-. Clause-10.1 of the agreement provides to give possession of the unit to the complainants within 42 months from the date of execution of the agreement. 42 months period expired on 05.08.2016 but the construction was not completed. The complainants have reason to believe that the opposite party was syphoning the fund of this project to other project. The complainants made several telephone calls inquiring the expected date of possession but all the time the opposite party avoided to give correct date. The opposite party is taking a defense of its own default by violating the rules and which cannot be considered as beyond their control, when allotees invested their hard-earned money, till today the opposite party has failed and neglected to hand over physical possession of the unit to the complainants. Therefore, the complaint was filed on 01.10.2018, alleging deficiency in service.
The opposite party has filed its written reply on 27.11.2018 and contested the matter. The opposite party stated that terms and conditions were incorporated in the application form and known to the complainants from very beginning. The project “The Esfera” was in two phases. Phase-I comprises Towers F, G and H and Phase-II A, B, C, D, and E. The opposite party completed construction of Phase-I and applied for issue of “occupation certificate” on 20.06.2017, which was issued on 07.02.2018. The various home buyers of Phase-I have taken possession and more than 70 families are residing there. The construction of Phase-II is going in full swing and is near completion. The opposite party is making all efforts to deliver possession within time line as fixed by Haryana RERA authority. There is no unreasonable delay on in handing over of possession. Delay has occurred for the reasons beyond the control of the opposite party i.e. in getting all statutory clearances from the statutory authorities, lack of availably of the raw materials, labour strikes, ban on construction activities and delay caused in obtaining the clearance for water supply which was hindered in the locality due to restrictions imposed by the High Court of Punjab and Haryana in CWP 20032 of 2008. The complainants have booked the unit for commercial purpose and not for their use.
The complainants have filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Supriaya Sharma. The opposite party has filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Rohit Sharma and documentary evidence. The opposite party filed his written synopsis.
I have considered the arguments of the counsel for the parties and examined the record. Clause-10.1 of the agreement provides 42 months from the date of the agreement for handing over possession, which period has expired on 05.08.2016. The opposite party has taken plea of force majeure for delay in construction but the plea is not liable to be accepted in as much as payment plan was “construction link payment plan” and the opposite party has realized about 90% of basic sale price till 2016. The opposite party filed written synopsis of argument on 21.12.2022 but even in this also, the opposite party has not stated that the construction was completed and they had obtained “occupation certificate”. It is well settled that a home buyer cannot wait for possession for unlimited period.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund within a period of two months from the date of this judgment.