1.      Heard Mr. Aditya Parolia, Advocate, for the complainant and Mr. Pravin Bahadur, Advocate, for the opposite parties.

2.      Jatin Jain has filed above complaint for directing the opposite parties to (i) refund Rs.20797199/- with interest @18% per annum from the date of respective deposit till its realization; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.100000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that M/s. Adani M2K Projects LLP (opposite party-1) (the developer) was a limited liability partnership firm, constituted under Limited Liability Partnership Act, 2008 and M/s. Aakarshan Estate Private Limited (opposite party-2) was company, registered under the Companies Act, 1956 and the owner of the project land. The opposite parties were engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The developer launched a group housing project, in the name of “Oyster Grande”, at village Khedki Mazra, Sector-102-102-A, Off Dwarika Expressway, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities. The developer advertised that the project was luxurious township, excellent connectivity through NH-8 and Golf Course Extension Road/Dwarka Expressway, with unmatched comfort in terms of design, layout and amenities, ample natural light in apartment, ensuring healthy lifestyle, green view park and green area, 24 hours manned security on entrance gates, water supply through underground supply line and overhead tanks, storm water, drainage system, integrated with rain water harvesting, fire detection as per safety norms, etc. The representatives of the developer approached the complainant and reiterated the representations of the brochure. Believing upon the representations of the developer, the complainant booked a 4BHK + Powder room + Servant room on 18.10.2012 and deposited booking amount of Rs.1500000/-. The developer vide Provisional Allotment Letter dated 31.12.2012, allotted Apartment No.302 and executed Apartment Buyer’s Agreement on 26.10.2013, of Apartment No.302, ‘super area’ 3198 sq.ft. and total consideration of Rs.21563946/-. By the time of agreement, the complainant had paid Rs.3623203/-. Payment plan was “construction link payment plan”. In order to make timely payment of the instalment, the complainant took a loan of Rs.15379142/-, from Axis Bank, for which a tripartite agreement was executed on 05.05.2016. The complainant paid total Rs.20797199/- till June, 2016. Article-5 of the agreement provides that the developer shall endeavour to complete construction within a period of 48 months from the date of execution of the agreement or from the date of commencement of the construction, whichever is later, with grace period of six months. As per statement of account, the date of start of construction was 15.02.2013 as such due date of possession would be counted from the date of agreement and expired on 25.10.2017 and grace period expired on 25.04.2018 but the construction was not completed. The complainant sought for refund of his money but the developer did not respond. The complaint was filed on 16.01.2019, alleging unfair trade practice and deficiency in service.

4.      The opposite parties filed written reply on 06.05.2019, in which, booking of the apartment, allotment of the apartment, execution of the agreement and deposits made by the complainants, have not been denied. The opposite parties stated that the construction was completed on 20.07.2017 and the opposite parties applied for issue of “occupation certificate” on 12.10.2017, which was issued on 12.02.2019. The opposite parties offered possession to the complainant vide letter dated 16.02.2019. There was no delay on the part of the opposite parties in completing the construction, however, statutory authorities delayed issuance of “occupation certificate”. In clause-39 of Booking Application, same period for completion of construction was given as given in the agreement. It has been denied that any representative of the opposite parties approached the complainant and convinced for booking of the apartment. Terms and conditions have been disclosed in Booking Application and known to the complainant from very beginning and not one-sided. The complainant used to pay instalment with delay from very beginning in spite of demand letters and reminders issued to him as is proved from statement of account. It has been denied that demands were raised before reaching the milestone of the construction. The opposite parties waived interest, accrued due to delayed payment of instalments, time to time. The complainant moved an application dated 27.01.2016 for revoking cancellation notice and tendered two instalments through cheques dated 30.01.2016. The complainant was a speculative investor and now the market in real estate has gone down as such the complaint was filed for refund with interest @18% per annum. Had he booked the apartment for his residence?, he would have taken possession after deposit of balance amount. The complainant has filed downloaded brochure of the year 2017 to mislead the Commission. It has been denied that the complainant ever approached the opposite parties for possession or refund, before filing the complaint. After notification of Haryana Real Estate Regulatory Authority, the project was registered with it on 29.08.2017. There was no deficiency in service on their part and the complaint is liable to be dismissed.

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence of Jatin Jain and documentary evidence. The opposite parties filed Affidavit of Evidence of Naveen Kumar Mittal and documentary evidence. Both the parties have filed written synopsis.

6.      The counsel for the complainant has relied upon the judgment of Supreme Court in  Pioneer Urban Land and Infrastructure Limited Vs. Govindan Raghavan, (2019) 5 SCC 725, in which two years delay was held as unreasonable delay. Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416 and Civil Appeal Nos.7108-7109 of 2022 M/s. Chintels India Ltd. Vs. Sangeeta Agarwal (decided on 10.10.2022), in which a delay of one year five months was considered as unreasonable delay. He further relied upon Utpal Trehan Vs. DLF Home Developers Limited, (2022) 10 SCC 409, in which, it has been held that if the builder raised arbitrary demands along with offer of possession, then offer of possession is not a valid offer. He relied upon judgment of Supreme Court in Civil Appeal No.3343 of 2020 Debashis Sinha Vs. M/s. R.N.R. Enterprise (decided on 09.02.2023) in which, it has been held that in absence of “completion certificate” offer of possession was not valid.

7.      I have considered the arguments of the counsel for the parties and examined the record. Article-5 of the agreement provides that the developer shall endeavour to complete construction within a period of 48 months from the date of execution of the agreement or from the date of commencement of the construction, whichever is later, with grace period of six months. The agreement is later i.e. dated 26.10.2013.  As such due date for completion of construction would be counted from the date of agreement and expired on 25.10.2017 and grace period expired on 25.04.2018. The opposite parties have stated that the construction was completed on 20.07.2017 i.e. well within time. The opposite parties applied for issue of “occupation certificate” on 12.10.2017, which was issued on 12.02.2019. The opposite parties offered possession to the complainant vide letter dated 16.02.2019. There was no delay on the part of the opposite parties in completing the construction, however, statutory authorities delayed issuance of “occupation certificate”.  The opposite parties have produced copies of the application for issue of “occupation certificate” filed on 12.10.2017, “occupation certificate” issued on 12.02.2019 and letter dated 16.02.2019, offering possession. From which, it is proved that the possession was offered with a reasonable delay and there was no deficiency in service on the part of the opposite parties. Under Haryana Building Code, 2016, “occupation certificate” is compulsory for offer of possession and not “completion certificate”. Supreme Court in Ireo grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241 and this Commission in CC/1564/2017 Shailesh Kumar Vs. DLF Home Developers (decided on 12.09.2018), Vineet Kumar Vs. DLF Universal Ltd., 2019 SCC OnLine NCDRC 9 and Pramod Kumar Madan Vs. DLF Ltd., 2021 SCC OnLine NCDRC 924, held that if possession is offered after obtaining “occupation certificate”, then the home buyer is contractually obligated to take possession. Judgment of this Commission in Shilesh Kumar’s case (supra) has been approved by Supreme Court in Civil Appeal No.11254 of 2018 DLF Home Developers Vs. Shailesh Kumar, (decided on 22.02.2019).

8.      The complainant has not shown as to how demand attached with offer of possession letter dated 16.02.2019 is illegal. Judgment of Supreme Court in Utpal Trehan Vs. DLF Home Developers Ltd., (2022) 10 SCC 409 has no application in the present case.

9.      In this case, there is no unreasonable delay in offer of possession, if the complainant denies possession, then his allotment is liable to be cancelled and earnest money is liable to be forfeited under Article-6(V) of the agreement. Under Article-3(D) of the agreement ‘earnest money’ is 15% of sale consideration. However, Supreme Court, in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Sirdar K.B. Ram Chandra Raj Urs Vs. Sarah C. Urs, (2015) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section-74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat remains with the developer as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs.EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s. IREO Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as “earnest money”.       

ORDER

10.    In view of aforesaid discussions, the complaint is partly allowed. The complainant is given liberty to give his option for taking possession or refund within one month from the date of this judgment. If the complainant opts for possession, the opposite parties shall issue a fresh statement of account, charging interest @9% per annum on balance amount after 05.03.2019 and give one month time for deposit of balance amount and completion of documentations. On deposit of balance amount and completion of documentation, the opposite parties shall handover possession of the flat, complete in all respect as per specification, without any delay.

11.    If the complainant opts for refund, then the opposite parties shall refund entire amount deposited by the complainant with interest @9% per annum from date of respective deposit till the date of refund, after forfeiting 10% of basic sale consideration, within a period of two months from the date of this judgement.