Yashpal Gupta vs Imperia Structure Ltd

Heard Mr. Sachin Jain, counsel for the complainant and Ms. Neha Gupta, counsel for the opposite party.

Mr. Yashpal Gupta has filed the above complaint for directing the opposite party (i) to refund the entire amount collected from the complainant with interest @18% per annum, (ii) to pay Rs.20/- lacs, as compensation for mental agony and harassment, (iii) to pay Rs.20/- lacs, as compensation for escalation of price index, (iv) to pay Rs.2/- lacs, as costs of litigation, and (v) any other relief which is deemed fit and proper in the facts of the case.

The complainant stated that Imperia Structure Ltd. (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 party launched a group housing project in the name of ‘The Esfera’ at Sector 37-C, Gurgaon, Haryana in the year 2012 and made wide publicity of its facilities and amenities.  Believing upon the representation of the opposite party, the complainant booked a flat on 16.05.2012 and deposited the booking amount. The opposite party allotted Flat no.B-204, super area 1850 sq. ft. for basic sale price of Rs.8675000/- and executed Apartment Buyers Agreement in favour of the complainant on 16.04.2013.  Clause 11.4 of the Agreement provides three years’ period for delivery of possession and in case the builder fails to deliver possession within three years, then the buyer was given liberty to get his amount refunded along with interest @9% per annum. The payment plan was ‘construction linked payment plan’ and as per demand of the opposite party, the complainant deposited total amount of Rs.9029317/- upto 29.10.2015. Three years period expired on 15.04.2016. The opposite party however, could not complete the construction and deliver possession to the complainant. The complainant gave a notice dated 17.03.2017 for refund of his amount. Inspite of service of notice, the opposite party did not respond. Then this complaint was filed.

The opposite party filed its written reply in the complaint in which the material facts relating to the booking of the flat by the complainant on 17.05.2012, allotment of flat, execution of Apartment Buyers Agreement dated 16.04.2013 and deposits made by the complainant, have not been disputed. The opposite party however, pleaded that for the force majeure circumstances, the construction could not be completed within the due date and the opposite party was entitled for extension of the period for which the construction could not proceed.

The complainant filed Rejoinder reply and Affidavit of Evidence of Mr. Yashpal Gupta. The opposite party filed Affidavit of Evidence of Brig. D.S. Gill. Both the parties have filed their written synopsis.

We have considered the arguments of the counsel for the parties and examined the record. Apartment Buyers Agreement was executed on 16.04.2013 and vide clause 11.4 of the Agreement, three years’ period has been provided for delivery of possession from the date of execution of the agreement which expired on 15.04.2016 but neither the construction was completed nor the occupation certificate has been obtained. Although the counsel for the opposite party states that the opposite party has taken assistance from “Swamih Fund” and has completed the construction and has also applied for issuance of occupation certificate but till today, occupation certificate has not been issued.  It is well settled that a home buyer cannot be made to wait for indefinite period for possession.

ORDER

In the result, the complaint is partly allowed with cost of Rs.50000/-. The opposite party is directed to pay the entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of actual payment within a period of two months from today.