Varsha Ahuja & Anr vs Ireo Grace Realtech Private Limited

Heard Mr. Pawan Kumar Ray, Advocate, for the complainants, Mr. Sameer Chaudhary, Advocate, for opposite Party.

Varsha Ahuja and Aseem Ahuja have filed above complaint, for directing the opposite party to (i) refund Rs.19281625.88/- with interest @18% per annum from the date of respective deposit till the date of refund, (ii) pay Rs.500000/-, as compensation for mental agony and harassment, (iii) pay Rs.150000/-, as litigation cost; 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 projects and selling its unit to the prospective buyers. The opposite party launched a group housing project in the name of “The Corridors” at villages Dhumaspur and Maidwas, 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 25.03.2013 and deposited booking amount. The opposite party issued Allotment Offer Letter, allotting Apartment No.CD-A-3-05-502, super area 1920.22sq.ft. and executed Apartment Buyer’s Agreement (ABA) on 27.08.2014, in which, basic sale price of Rs.18050068/- ((@ 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. As per Annexure-IV, payment plan was “instalment payment plan” which was actually a “construction linked payment plan”. Initially, the developer announced for “timely payment rebate” but withdrew it, vide letter dated 02.07.2015. The complainants diligently followed payment plan and deposited total Rs.19281625.00. As informed by the developer, 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. Therefore, this complaint was filed on 07.08.2019, alleging deficiency in service.

The opposite party filed its written reply on 04.11.2019 and contested the complaint. The material facts relating to the project, allotment of the apartment to the complainants, execution of ABA dated 27.08.2014 in thei favour and payments made by them have not been disputed. The opposite party stated that construction of first phase of the project, which consisted 1356 apartments were completed. The opposite party applied for issue of “occupation certificate” for Towers A-6 to A-10, B-1 to B-4, C-3 to C-7 (consisting 700 apartments) and EWS block on 05.07.2018, which was issued on 31.05.2019. The developer applied for issue of “occupation certificate” of Towers A-1 to A-5, B-5 to B-8, C-8 to C-11, Community Centre, EWS Building-2, Convenient Shopping-1 and 2 on 10.09.2019, which was awaited. The delay in issue of “occupation certificate” was beyond the control of the opposite party and is a force majeure as provide in Clause-13.3 and 13.6 of the ABA. The opposite party is entitled for extension of the period, for which “occupation certificate” is being delayed. The opposite party wrote emails to the complainants and other allottees to change their allotment in phase-I construction and take possession but the complainants did not reply. 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 under the Act of 2016. The complainants are defaulter. 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 03.03.2015. 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. Terms and Conditions of allotment letter and the ABA 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 developer and the complaint is liable to be dismissed.

The complainants filed Rejoinder Reply on 21.01.2020, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Varsha Ahuja.

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 IREO 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 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. The developer started construction of phase-I, (which consisted Towers A-6 to A-10, B-1 to B-4, C-3 to C-7 and EWS block). After completing the construction, the opposite party applied for issue of “occupation certificate” on 05.07.2018, for phase-I, which was issued on 31.05.2019. There was no inordinate delay in offer of possession and the allottees of phase-I construction were obligated to take possession.

So far as remaining allottees were concerned, Supreme Court upheld order of this Commission for refund, with interest @9% per annum, from the date of their respective deposit till the date of actual payment. The developer has stated that he has applied for issue of “occupation certificate” of Towers A-1 to A-5, B-5 to B-8, C-8 to C-11, Community Centre, EWS Building-2, Convenient Shopping-1 and 2 on 10.09.2019. The counsel for the opposite party informed that “occupation certificate” was issued on 27.01.2022 but there is unreasonable delay in offer of possession. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.

Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117 (SC) held when interest is awarded as compensation in the cases of refund of money, then awarding additional compensation was not justified. Supreme Court in Experion Developers (P) Ltd. Vs. Sushama Ashok Shiroor, 2022 SCC OnLine 416, held that in the matter of refund, award of interest @9% per annum, from the date of respective deposit will appropriate restitutory and compensatory compensation.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire money deposited by the complainants, with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment.