Vikas Chadha vs Ireo Grace Realtech Private Limited

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

Vikas Chadha has filed above complaint, for directing the opposite parties to (i) refund Rs.17836357.04/- 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.50000/-, as litigation cost; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that opposite party was 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 complainant booked a 3BHK+S flat on 22.03.2013 and deposited booking amount. The opposite party issued application form for allotment on 22.03.2013, which was filled up by the complainant and submitted on the same day. The opposite party issued Allotment Offer Letter dated 07.08.2013, allotting Apartment No.CD-A-4-08-804, super area 1920.37 sq.ft. and executed Apartment Buyer’s Agreement (ABA) on 27.05.2014, in which, basic sale price of Rs.18051478/- ((@ 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 complainant diligently followed payment plan and deposited Rs.17221856/- with the opposite party. As informed by the opposite party, building plan was approved in February, 2014, as such, 48 months period expired in February, 2018. The complainant 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 complainant was in urgent need of alternate house. Therefore, this complaint was filed on 29.07.2019, alleging deficiency in service.

The opposite parties filed its written reply on 30.09.2019 and contested the complaint. The material facts relating to the project, allotment of the apartment to the complainant, execution of ABA dated 09.06.2014 in his favour and payments made by him 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 opposite party 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 provided 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 complainant and other allottees to change their allotment in phase-I construction and take possession but the complainant 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 complainant be relegated to go before that authority for their grievances. The project “The Corridor” was registered under the Act of 2016. The complainant is defaulter. Although Building Plan was approved on 23.07.2013 but it was conditional for obtaining Fire NOC. The developer obtained Fire NOC on 27.11.2014. The construction was started thereafter. The developer raised first demand for instalment of “Casting Roof Slab” from the complainant 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 complainant can claim refund only after 27.11.2019, in case the developer, 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.

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 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 counsel for the developer informed that the builder has applied for “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 has been issued on 27.01.2022. But it is unreasonable delay. 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-1 is directed to refund entire money deposited by the complainant 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.