Yogesh Kumar Sareen vs Selene Constructions Ltd

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Akshay Srivastava, Advocate, for the complainant and Mr. Vaibhav Agnihotri, Advocate, the opposite party.

Yogesh Kumar Sareen has filed above complaint, for directing the opposite party to (i) refund INR.15503012/- with interest @18% per annum from the date of respective deposit till the date of refund; (ii) pay INR 1000000/-, as compensation for mental agony and harassment; (iii) pay INR 100000/-, as litigation costs; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant 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 party launched a group housing project in the name of “Centrum Park”, consisting 2BHK to 4BHK & Penthouse etc. at village Daulatabad, Sector-103, district Gurgaon, in the year 2012 and advertised that the project was a completely licensed project and contain masterfully crafted apartment that celebrate and appreciate the high standards of modern lifestyle and other facilities including 24 hours water supply, power backup, medical support, manned security on entrance gates, sewage treatment plant, fire safety norms complaint structure and other basic amenities. Believing upon the representations of the opposite party, the complainant booked a 4BHK+SQ flat on 05.04.2013 and deposited booking amount. The opposite party issued a provisional allotment letter dated 10.06.2013, allotting Apartment No.164 on 16th floor, area of 2875 sq.ft., Block No.G3 along with 1 parking space and executed Flat Buyer Agreement on 26.06.2013, in favour of the complainant. Clause-21 of the agreement provides three years period with six months grace period, for completion of the construction and delivery of possession. Annexure-1 of the agreement contains payment plan as “construction link payment plan”. The complainant deposited instalments on time and as per demand of the opposite party and almost 95% of the total consideration was paid till May, 2017 and a meagre sum of Rs.848928/- remained to be paid on offer of possession. The opposite party kept on assuring the complainant that he had invested his hard earned money at the right place and possession would be delivered within short time but failed to provide a fix date of delivery of the possession. In May, 2017, the opposite party, demanded a sum of Rs.158744/- towards contingency deposit for payment of VAT liability and threatened to charge interest @24% if the same is not paid forthwith. The complainant paid Rs.158744/- to the opposite party in June, 2017 under threat of charging 24% interest. The opposite realized instalment of “on commencement of finishing work” on 26.08.2014 and due date of possession including grace period expired on 26.10.2016 but the opposite party failed to deliver possession. Then, the complainant sent a notice on 15.07.2017 to the opposite party for refund his amount with interest. On 04.08.2017, the opposite party sent a short reply denying the grievance of the complainant for refund and tried to persuade the complainant that the project was progressing at full pace. Then, this complaint was filed on 13.09.2017.

The opposite party filed its written reply, in which booking of the flat, on 05.04.3013, allotment on 10.06.2013, execution of Flat Buyer Agreement on 26.06.2013 and payments made by the complainant, have not been disputed. The opposite party stated that basic sale price was Rs.16200000/- excluding statutory charges and taxes. The complainant took loan from Indiabulls Housing Finance Limited, for which a tripartite agreement dated 26.07.2013 was executed. It has been denied that the complainant had made timely payment of the instalments. Various allottees were defaulters as such the project was delayed. The opposite party through email dated 04.08.2017 requested the complainant to fill up the cancellation form and submit the same for refund of his money but instead of completing formalities for refund, this complaint has been filed with exorbitant demands. It has been denied that the opposite party had syphoned the fund. Preliminary issues that the complainant is not a consumer, the agreement contained an arbitration clause as such the complainant be relegated to go for arbitration and the agreement contained penalty clause in case of delay, which is payable on offer of possession and the parties are bound by the terms of the contract, have been raised.

The complainant filed Rejoinder, Affidavit of Evidence of Yogesh Kumar Sareen and documentary evidence. The opposite party filed Affidavit of Evidence of Sushil Singh and documentary evidence. In IA/9729/2019, the opposite party has stated that “occupation certificate” has been issued on 01.01.2019. Both the parties have filed their short synopsis.

I have considered the arguments of the counsel for the parties and examined the record. Clause-21 of the agreement provides three years period with six months grace period, from the date of execution of the agreement, for completion of the construction and delivery of possession, which had expired on 26.12.2016. The opposite realized instalment of “on commencement of finishing work” on 26.08.2014 and about 95% of basic sale consideration had been realized till then. In the demand letter dated 11.08.2014, the opposite party has admitted deposit of Rs.14501068/- by the complainant by that time. Although the opposite party has stated that the complainant had not made timely payment of instalments but no evidence has been produced to prove it. The opposite party obtained “occupation certificate” on 01.01.2019, i.e. with delay of two years and after filing of the complainant. There is nothing on record to prove that the opposite party ever offered possession to the complainant. The opposite party has not given any reasons for delay in completing the construction. Supreme Court in Banglore 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.

ORDER

In view of 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 actual payment, within a period of two months from the date of this judgment.