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Judgment
Heard Mr. A.R. Takkar, Advocate, for the complainants and Mr. Chaitanya Bansal, Advocate, for the opposite party.
Vinay Kumar and Rebekkah Kumar have filed above complaint for directing the opposite party to (i) refund entire amount deposited by him with interest @24% per annum from the date of respective deposit till the date of actual payment; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.one lace, as litigation cost; (iv) Pay Rs.1000000/-, as compensation for deficiency in service; and (iii) any other relief which is deemed fit and proper in the facts and circumstances 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 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, Golf Course Extension Road, Sector-67-A, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations of opposite party, the complainants booked a 3BHK+S flat on 03.02.2013 and deposited booking amount of Rs.1600000/-. The opposite party mentioned Unit No.CD-A1-02-202 in receipt dated 11.03.2013. As per demand, the complainants deposited Rs.2082958/- on 06.05.2013. The opposite party issued Allotment Offer Letter on 07.08.2013, allotting Unit No.CD-A1-02-202, super area 1900.3 sq.ft., total cost Rs.20271389.78/- As per demand, the complainants deposited Rs.2548947/- on 16.04.2014 of the instalment of “commencement of excavation”. The opposite party sent a draft of Apartment Buyer’s Agreement to the complainants in April, 2014. The complainants visited the site and found that no construction was started on the spot. The complainants sought for update of the construction from the opposite party but they did not respond. M/s. Precision Realtors Private Limited issued a letter dated 04.08.2016, seeking no objection for revision of the map. Clause-13.3 of the agreement provides 42 months period from the date of approval of building plan, for offer of possession, with grace period of 180 days. The building plan was approved on 23.07.2013. The period of 42 months will expire on 22.01.2017 but the opposite party issued demand letter dated 10.01.2017 of fourth instalment, which shows that the construction would be delayed. Then the complaint was filed on 20.01.2017, alleging deficiency in service.
The opposite party filed its written reply on 06.04.2017 and contested the matter. The material facts relating to the project, allotment of the apartment to the complainants and payments made by them, have not been disputed. The opposite party stated that although building plan was approved on 23.07.2013 but “No Objection Certificate” from Fire Department was delayed and issued on 27.11.2014 although it was applied on 24.10.2013. The opposite party applied for NOC from State Environment Impact Assessment Authority, Haryana, which was issued on 12.12.2013, imposing restriction for raising construction under right of way of High Tension Electric Line, passing through the project land, which affected Tower-A-1 and Tower-A-2. The opposite party approached DHBVN for removal of High Tension Electric Line. Despite best efforts, High Tension Electric Line was removed in July, 2016. Then the opposite party issued letter dated 04.08.2016, to the buyers, seeking no objection from them for revision of the Layout plan. Delay has occurred due to the reasons beyond the control of the opposite party and is a force majeure reason as provided in Clause-13.3 and 13.6 of the ABA. The opposite party is entitled for extension of the period. The complaint is pre-mature and is liable to be dismissed as period of 42 months is liable to be counted from 27.11.2014 and due date of possession including grace period would be 26.11.2018.
The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of document and documentary evidence. The opposite party filed Affidavit of Evidence of Subhasis Lahiri. Both the parties filed their written arguments.
We have considered the arguments of the counsel for the parties and examined the record. In the present, the complainants sought for refund of his amount before execution of the agreement on the ground that he was assured for possession within 42 months of the booking with grace period of six month. The booking was done in February, 2012 and 48 months period expired in February, 2016. The building plan was approved on 23.07.2013. The period of 42 months from this date also expired on 22.01.2017 but the opposite party issued demand letter dated 10.01.2017 of fourth instalment, which shows that construction would be unreasonably delayed. The opposite party relied upon terms of the agreement for extension of period but the agreement was not signed by the parties. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Vs. Govind Raghavan, (2019) 5 SCC 725 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.
ORDER
The complaint is partly allowed. The opposite party 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 refund, within a period of two months from this judgment.