1. Heard Mr. Pawan Kumar Ray, Advocate, for the complainants and Mr. Pravin Bahadur, Advocate, for the opposite party. 2. Preeti Jain and Pankaj Jain have filed above complaint for directing the opposite party to (i) refund Rs.21197854.20p with interest @18% per annum from the date of payment till realisation, (ii) pay Rs.500000/-, as compensation for mental agony and harassment, (iii) pay Rs.100000/-, as litigation expenses and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case. 3. The complainants stated that M/s Adani M2K Projects LLP (opposite party) was a Limited Liability Partnership Firm, incorporated under the Limited Liability Partnership Act, 2008 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 “Oyster Grande”, located at Village Khedki Mazra, Sector-102/102A, District Gurgaon, Haryana and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainants booked a 4BHK+Powder room +Servant room flat on 21.02.2013 in the aforesaid project and deposited booking amount of Rs.15/- lacs. The opposite party allotted Apartment No. J-1102, 11th Floor, super area of 3198 sq.ft. vide provisional allotment letter dated 23.03.2013 to them and executed Apartment Buyer’s Agreement in their favour on 31.05.2013, in which total consideration was mentioned as Rs.21984636/-. Article-5-A of the agreement provides 48 months period from the date of execution of the agreement or from the date of commencement of construction, whichever is later with grace period of six months, subject to force majeure events, for completion of the construction. Annexure-B of the agreement provides payment plan as “construction link payment plan”. As per demands, the complainants deposited total Rs.21197854.20p till 17.10.2016. The period of 54 months expired on 31.11.2017 but the opposite party neither completed the construction nor offered possession. For paying the instalments, the complainants took loan of Rs.120/- lacs from ICICI Bank and were burdened to pay its EMI. The opposite party issued demand letter dated 16.02.2019, demanding Rs.2856660/- although as per payment plan, this demand ought to have been raised on “offer of possession”. The complainants visited the site to inspect the actual status of construction and found that the construction was far away from the stage of completion, which may take next one-two years. The complainants have reason to believe that the opposite party was attempting to extract further money from them. The complainants booked the flat for accommodation of their son. However, delivery of possession was unreasonably delayed and now their son has shifted to United States of America as such their requirement was no more exist. The complainants asked the opposite party to refund their money with interest but it had fallen on deaf ears. The complainants approached Haryana Real Estate Regulatory Authority, which was withdrawn with liberty to file the consumer complaint. Then this complaint was filed on 13.03.2019, alleging deficiency in service. 4. The opposite party filed its written reply on 25.07.2019, in which, booking of the flat by the complainants, allotment of the flat to them, execution of Apartment Buyers’ Agreement in their favour and payments made by them, have not been disputed. The opposite party denied that the complainants had made timely payment of instalments and stated that the complainants delayed payments of some instalments, for which, the opposite party had issued reminders dated 01.02.2016, 17.06.2016, 28.07.2016 and 28.09.2016. Clause-39 of the Booking Application provides that the builder would endeavour to handover possession within forty eight months period from the date of execution of the agreement or from the date of commencement of construction, whichever is later with grace period of six months and subject to force majeure events. Identical term is used in Article 5 of the agreement dated 31.05.2013. Said period of 54 months expired on 30.11.2017. The opposite party competed construction of Tower-J, in which, the complainants were allotted flat and applied for issue of “occupation certificate” on 12.10.2017. Statutory authority however delayed issue of “occupation certificate”, which was issued on 12.02.2019. Thereafter, the opposite party offered possession to the complainants vide letter dated 16.02.2019. It has been denied that construction was incomplete at that stage. The opposite party already obtained “occupation certificate” and there was no reason for them to delay possession. The opposite party has filed photographs to prove that the construction of the project was complete in all respect. The complainants never raised any objection in this respect before the opposite party, after obtaining letter dated 16.02.2019. If payment plan is read with Article 5-B of the agreement, it is clear that the complainants had to make full payment before taking possession. Demand letter dated 16.02.2019 mentioned “on offer of possession”. The complainants instead of depositing the balance amount and taking possession, have filed this complaint on false allegations. Out of total 691 home buyers, except 12 home buyers, others have taken possession and the opposite party executed 650 conveyance deeds. The complainants have claimed interest @18% per annum, which shows that they were investors for better return and not a consumer. Due to fall in real estate market, the complainants have malafide filed this complaint for refund, after offer of possession. The complaint is liable to be dismissed. 5. The complainants filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Preeti Jain and Mr. Pankaj Jain and documentary evidence. The opposite party filed Affidavit of Evidence of Mr. Naveen Kumar Mittal and documentary evidence. Both the parties have filed their short synopsis. 6. I have considered the arguments of the counsel for the parties and examined the record. Article 5(A)(i) of the agreement provides that the developer based on its present plans and estimates and subject to all just exceptions will endeavour to complete construction within a period 48 months from the date of execution of this agreement or from the date of commencement of the construction, whichever is later, with a grace period of six months, subject to force majeure events. For the purpose of this agreement, the date of making an application to the concerned authority for issue of completion/part completion/ occupation/part occupation certificates of the said project shall be treated as the date of completion of the apartment. The agreement was executed on 31.05.2013. Date of commencement of construction has not been given, as such the period of 48 months has to be counted from 31.05.2013 and expired on 30.05.2017 and six months grace period expired on 30.11.2017. The opposite party moved an application for issue of “occupation certificate” on 12.10.2017 and the same was issued on 12.02.2019. The opposite party took plea that issuance of “completion certificate” has been delayed by statutory authority, which is liable to be extended under Article 5-A of the agreement. Although the complainants have alleged that after receiving letter dated 16.02.2019, they had visited the site to inspect the actual status of construction and found that the construction was far away from the stage of completion, which may take next one-two years but they have not raised any objection before the opposite party in this respect. On the other hand the opposite party has filed photographs to prove that the construction was complete in all respect at that time. From the aforesaid facts it is proved that the opposite party had fulfilled its obligation under Article-5-A of the agreement within stipulated time. 7. The complainants stated that letter dated 16.02.2019 was only a demand of Rs.2856660/- although as per payment plan, this demand ought to have been raised on “offer of possession”. This letter does indicate that the possession was offered to the complainants. This argument is not liable to be accepted. The opposite party competed construction of Tower-J, in which, the complainants were allotted flat and obtained “occupation certificate”, on 12.02.2019. From the photographs also, it is proved that the construction was complete in all respect on that day. As per payment plan, last instalment was payable “on offer of possession” and not “on handing over possession”. Article-5-B(i) of the agreement provides that the developer, upon obtaining completion certificate from the statutory authority shall offer in writing to the allottee about the date on which the developer would be effecting possession of apartment to the allottee, provided the allottee is not in default of any of the terms and conditions of this agreement and has complied with all provisions, formalities, documentation etc. including compliance of offer of possession letter. From this clause, it is clear that the complainants have to pay last instalment before actual offer of possession. Technical objection, raised by the complainants in this respect is not liable to be accepted. Supreme Court in Ireo Grace Realteck Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, held that if the builder has offered possession after obtaining “occupation certificate”, the home buyer is obligated to take possession. 8. As found above that the opposite party had fulfilled its obligation under Article-5-A of the agreement within stipulated time and issuance of “occupation certificate” was delayed by the statutory authority. The complainants never exercised their right to terminate the agreement on account of delay before offer of possession on 16.02.2019. They for the first time claimed refund by filing this complaint on 13.03.2019. Only after offer of possession the complainants want to go out of the agreement as such their earnest money is liable to be forfeited. Article-3 (d) of the agreement provides that 15% of the sale consideration (Basic sale price + PLC +Parking charges) would be earnest money. But 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 In the result, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of refund after forfeiting 10% of basic sale price, within a period of two months from the date of this judgment. |
