	20 - Mar - 2012	500000.00
	18 - Aug - 2012	12,25,000.00
	18 - Aug - 2012	12,75,000.00
	23 - Aug - 2012	4,44,354.00
	01 - Oct - 2012	14,00,056.00
	04 - Oct - 2012	14,00,000.00
	06 - Oct - 2012	15,50,000.00
	15 - Oct - 2012	7,00,000.00
	15 - Oct - 2012	70,000.00
	15 - Oct - 2012	50,548.00
	24 - Jul- 2013	7,58,676.00
	24 - Jul -2013	1,95,000.00
	24 - Jul - 201	1,73,024.00
	25 - Jul - 2013	6,05,300.00
	30 - Nov - 2013	14,18,000.00
	30 - Nov - 2013	12,32,000.00
	03 - Dec - 2013	3,76,000.00
	03 - Dec - 2013	1,72,000.00
	05 - Dec - 2013	2,66,000.00
	Total	1,38,10,958.00

Thereafter also, the complainant made another payment of Rs.15 lacs. Thus, she paid total amount of Rs.1,53,10,958/- (i.e. Rs.1,38,10,958/- for the period from 20.03.2012 to 05.12.2013 + Rs.15 lacs on 10.06.2020) to the opposite parties.
It has been stated that in the first instance draft/performa agreement, Annexure C-3 was sent to the complainant for signatures but there were certain objections with regard to terms and conditions contained therein, because they were heavily loaded in favour of the opposite parties. However, the said agreement was executed between the parties in the year 2013, copy of which was not retained with the complainant and she has placed on record unsigned duplicate copy thereof.
It has been further stated that despite the fact that substantial amount of Rs.1,53,10,958/- in the manner stated above stood paid by the complainant to the opposite parties, yet, they failed to deliver possession of the unit in question, for dearth of construction and development activities at the project site. Number of calls made to the opposite parties with a request to deliver possession of the unit did not yield any result. When her grievance was not redressed, left with no choice, legal notice dated 17.04.2020, Annexure C-6 was also served upon the opposite parties in the matter but to no avail.
Notice was served upon the opposite parties. However, none put in appearance on behalf of opposite parties no. 2 to 16, as a result whereof, they were proceeded against exparte vide order dated 10.11.2020.
Opposite party no.1 in its written reply while admitting factual matrix of the case with regard to booking of the unit by the complainant; payments made by her; and that possession of the said unit had not been delivered by the date this complaint has been filed; took numerous pleas/ objections as under:-
1. that the unit in question was purchased by the complainant for earning profits;
2. that complaint against opposite parties no.3,5,8 to 16 is liable to be dismissed;
3. that oppose parties no.2, 4, 6 and 7 were not the Directors of the Company for the period from July 2012 to October 2013;
4. that the fact that possession was to be delivered by June 2013 is misconceived because agreement has not been executed in respect of the unit in question;
5. that agreement was sent to the complainant for signatures but she failed to sign the same;
6. that the complainant has failed to place on record any evidence to prove that the agreement was sent back by her to the company after signatures;
7. that the date of booking of the unit in question has been wrongly mentioned in the complaint as 12.03.2012, whereas, it was 16.07.2012;
8. that this complaint is beyond limitation;
9. that vide demand letter dated 06.02.2020, option was given to the complainant to make the remaining payment and to sign agreement but she failed to do so; and
10. that seeking compensation for the period of delay without any specific relief is liable to be rejected.

On merits, it has been stated that construction of the unit in question was completed but delay took place on account of the reason that the National Green Tribunal, New Delhi (NGT) and Haryana State Pollution Board passed various orders, which impacted the construction activities at the project site; that after receipt of payment, layout plans/drawing were got revised, for which public notice was also issued for information of the allottees; that project was got registered with RERA on 20.11.2017; and on 17.09.2018, deemed occupation certificate in respect of the tower, where the unit of the complainant is located was issued by the competent Authority. It has been averred that it is the complainant who is not coming forward to make remaining payment and to sign the agreement. Prayer has been made to dismiss the complaint with costs.
In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in written statement filed by opposite party no.1.
This Commission afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the contesting parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments by the complainant, wherein she has reiterated her contentions.
We have heard the contesting parties and have gone through the entire record of the case, including the written arguments filed by the complainant, very carefully.
Before going into the merits of this case, it is significant to mention here that during pendency of this complaint, on 16.12.2020, both the parties landed into mutual agreement and gave statement before this Commission to the effect that without going into the merits of the case, possession of the unit in question be delivered by opposite party no.1 to the complainant, within a period of one month. Accordingly, this Commission passed following order on 16.12.2020:-

“..CC/130/2020

Both the parties are in agreement that without going into the merits of the case, the possession of the flat, in question, be delivered by opposite party No.1 to the complainant within a period of one month.

Accordingly, we direct opposite party No.1 to deliver possession of the unit, in question, to the complainant within a period of one month from today i.e. before 16.01.2021 and submit report to this Commission on 29.01.2021. Similarly, we direct the complainant to receive possession of the unit, in question, accordingly. It is made clear that opposite party No.1 shall serve 7 days’ advance notice to the complainant giving the exact date and time of delivery of possession and the complainant herself or her authorised representative shall receive the possession on the said scheduled date and time. Delivery of possession i.e. (giving and taking) shall be subject to outcome of this complaint....”

Resultantly, possession of the unit in question was handed over to the complainant on 23.01.2021.

As such, for adjudication of this complaint, following question needs consideration of this Commission:-
1. Whether, the complainant is a consumer?
2. Whether opposite parties no.2 to 16 are necessary parties to this complaint or not?
3. Whether in the absence of proof with regard to execution of the agreement, the complainant is entitled for any compensation for delay in delivery of possession of the unit in question and if yes for what period and to what extent?
4. Whether, opposite party no.1-company has been able to prove that the delay in delivery of possession of the unit in question was on account of force majeure circumstances having been faced by it or not?
5. Whether this complaint is within limitation? and
6. What is the remaining amount, the complainant is liable to pay to the opposite parties?

First, we will deal with the objection taken by opposite party no.1 to the effect that the complainant did not fall within the definition of ‘consumer’. It may be stated here that the objection raised is not supported by any documentary evidence and, as such, the onus shifts to opposite party no.1 to establish that the complainant has purchased the unit in question to indulge in ‘purchase and sale of units’ as was held by the Hon’ble National Commission in Kavit Ahuja Vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainant is a consumer as defined under the Act. Thus, irrespective of the fact that possession is sought or refund is sought, it is mandatory for the party opposite who is leveling such allegations, to prove the same (allegations) by placing on record cogent and convincing evidence, which is found missing in this case. In this view of the matter, objection taken by the opposite party no.1 stands rejected.
The next question that falls for consideration is, as to whether, this complaint is bad for misjoinder of opposite parties no.2 to 7 and 9 to 16 as necessary parties?. It may be stated here that it is not in dispute that Athena Infrastructure Limited-opposite party no.1 and Indiabulls Real Estate Limited-opposite party no.8 have admittedly received amount from the complainant, in respect of the unit in question. It is also not in dispute that possession of the unit in question was not delivered to the complainant by the date when this complaint was filed and it was handed over only on 23.01.2021 during pendency thereof i.e. after delay of more than 10 years from the date of booking. Opposite party no.1 has failed to prove on record by placing some cogent evidence in the shape of record obtained from Ministry of Corporate Affairs, Government of India, to prove that the Officers named at sr. nos. 2 to 7 and 9 to 16 of the memorandum of parties are not the Directors of the Company. Mere bald assertions to the effect that the said Officers have no role, whatsoever, with regard to the project in question, have no value in the eyes of law. The Larger Bench of the Hon’ble National Commission in the case titled as Rajnish Kumar Rohatgi & Anr. Versus M/S. Unitech Limited & Anr. Execution Application No. 80 of 2016 decided on 08.01.2019, has defined the term “Officer, who is default” which enacts that an officer of the company who is in default shall also be held liable. Relevant part of the said order is reproduced hereunder:-

“……….25. Section 5 of the Companies Act, 1956 which defined the term “officer, who is default” has been replaced by Section 2 (60) in the Companies Act, 2013, which came into force on 12.9.2013 vide S.O. 2754 (E) dated 12.9.2013 and reads as under:

“(60) “Officer who is in default”, for the purpose of any provision in this Act which enacts that an officer of the company who is default shall be liable to any penalty or punishment by way of imprisonment, fine or otherwise, means any of the following officers of a company, namely :-

Whole-time director;
Key managerial personnel; Section 2(51)
Where there is no key managerial personnel, such director or directors as specified by the Board in this behalf and who has or have given his or their consent in writing to the Board to such specification, or all the directors, if no director is so specified;
Any person who, under the immediate authority of the Board or any key managerial personnel, is charged with any responsibility including maintenance, filing or distribution of accounts or records, authorises, actively participates in, knowingly permits, or knowingly fails to take active steps to prevent, any defect;
Any person in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act other than a person who gives advice to the Board in a professional capacity;
Every director, in respect of a contravention of any of the provisions of this Act, who is aware of such contravention by virtue of the receipt by him of any proceedings of the Board or participation in such proceedings, without objecting to the same, or where such contravention had taken place with his consent or connivance;
In respect of the issue or transfer of any shares of a company, the share transfer agents, registrars and merchant bankers to the issue or transfer.

In our opinion, after coming into force of Section 2(60) of the Companies Act, 2013, the following persons will be considered to be the persons responsible to the company for the conduct of the business of the company.

(i) Managing Director (s) –

Whole-time director (s);
Key managerial personnel; Section 2(51)
Where there is no key managerial personnel, such director or directors as specified by the Board in this behalf and who has or have given his or their consent in writing to the Board to such specification, or all the directors, if no director is so specified;
Any person who, under the immediate authority of the Board or any key managerial personnel, is charged with any responsibility including maintenance, filing or distribution of accounts or records, authorises, actively participates in, knowingly permits, or knowingly fails to take active steps to prevent, any defect;
Any person in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act other than a person who gives advice to the Board in a professional capacity;

The term key managerial personnel has been defined in Section 2(51) of the Companies Act, 2013 and the following therefore, would be the key managerial personnel of a company:

“(i) the Chief Executive Officer or the managing director or manager,

(ii) the company secretary,

(iii) the whole time director ;

(iv) the Chief Financial Officer;

(v) such other officer, not more than one level below the directors who is in whole-time employment, designated as key managerial personnel by the Board; and

(vi) such other officer as may prescribed.

The above referred persons therefore, shall also be considered to be persons responsible to the company for the conduct of the business of the company.

The term ‘Manager’ has been defined in Section 2(53) of the Companies Act, 2013 which reads as under:

“53. ‘Manager’ means an individual who, subject to the superintendence control and direction of the Board of Directors, has the management of the whole, or substantially the whole, of the affairs of a company, and includes a director or any other person occupying the position of a manger, by whatever name called, whether under a contract of service or not;”

A person who qualifies as Manager in terms of the definition given hereinabove, shall also be considered to be a person responsible to the company for the conduct of the business of the company….”

It may be stated here that the company being a juristic person/artificial legal person created by law, it is necessary to act only through the agency of natural persons. It can only act through human beings, and they are the Directors through whom mainly the company acts. So, it is the Director or group of Directors, who administers, controls or directs the day-to-day affairs of the company. In the present case, opposite party no.1 has failed to convince this Commission that as whether necessary steps were taken by the Directors of the company, named in the head note of this complaint, during the entire period starting from 2012 to 2020, to redress the grievance of the complainant. It is therefore held that in no way it can be said that this complaint is bad for misjoinder of parties i.e. impleading the company-Athena Infrastructure Limited and Indiabulls Real Estate Limited alongwith Directors afore-named. In this view of the matter, application bearing no.636 of 2020 also stands dismissed with no order as to cost.

It is not in dispute that despite the fact that the complainant, in respect of the unit in question, has paid amount of Rs.1,53,10,958/- i.e. Rs.1,38,10,958/- for the period from 20.03.2012 to 05.12.2013 and Rs.15 lacs on 10.06.2020, which is more than 85% of basic sale price of Rs.1,74,46,600/-, yet, possession thereof was not delivered to her even by the date, when this complaint has been filed on 07.08.2020. As stated above, possession of the unit in question has ultimately been delivered to the complainant on 23.01.2021, on orders of this Commission, as the company and the complainant mutually agreed for the same.
However, there is a dispute between the parties, with regard to execution of the agreement, in respect of the unit in question. Counsel for opposite party no.1 contended with vehemence that since there is no proof of execution of the agreement between the parties and at the same time, the complainant has also not been to prove that she signed any agreement sent to her for signatures, therefore, in the absence of any contract between the parties, regarding date of delivery of possession of the unit by the company to her, she is not entitled to any compensation in that regard.

On the other hand, Counsel for the complainant contended with vehemence that initially on receipt of the said agreement, it was found that terms and conditions contained therein were heavily loaded in favour of the opposite parties and request was made to amend the same. However, thereafter, though the agreement in respect of the unit in question was signed by her and sent back to the opposite parties, yet, copy thereof was not retained by her and also the opposite parties failed to return the signed copy thereof.

However, the fact remains that the executed agreement is not on record. Thus, under above circumstances, the next question that falls for consideration is, as to whether, in the absence of proof with regard to execution of the agreement, the complainant is entitled for any compensation for delay in delivery of possession of the unit in question and if yes for what period and to what extent?

It may be stated here that irrespective of the fact that the agreement was signed between the parties or not, the fact that the complainant had paid substantial amount of Rs.1,53,10,958/- has been candidly admitted by opposite party no.1. However, Counsel for opposite party no.1 has failed to convince this Commission, as to on what basis and as per which schedule, the opposite parties kept on receiving amount from the complainant, in case, there was no agreement/contract between the parties in that regard. It has also not been clarified, as to why, if the complainant allegedly failed to send agreement back to the company after signatures, no letter/reminder in that regard was sent to her.

Be that as it may, in our considered opinion, under above circumstances, this Commission is of the view that this issue has to be decided, keeping in mind that agreement has not been executed between the parties, in respect of the unit in question. Thus, the next question here arises is, under these circumstances, what is the option left with this Commission to come to any definite conclusion with regard to compensation payable to the complainant. It is significant to mention here that it is well settled law that to ascertain the period/date by which possession should be handed over to the allottee in the absence of execution of agreement, is maximum, three years from the date of booking of the unit. It was so said by the Hon’ble Supreme Court of India in in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442 and also observed by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. In the present case, admittedly, booking amount of Rs.5 lacs was paid by the complainant to the opposite parties on 20.03.2012. Thus, if the reasonable period of three years is taken from 20.03.2012 (date of booking), the opposite parties should have delivered possession of the unit in question to the complainant latest by 19.03.2015. However, admittedly, possession of the unit in question has been delivered to the complainant on 23.01.2021, during pendency of this complaint, in the manner stated above.

During arguments, when we asked Counsel for the opposite parties, as to what was the reason for such an inordinate delay in delivery of possession of the unit in question to the complainant, he tried to wriggle out of the situation, by stating that it was only on account of force majeure circumstances, which were beyond the control of the company. Thus, the question here which arises for consideration is, as to whether, opposite party no.1-Company has been able to prove its case that it was on account of force majeure circumstances that such an inordinate delay in delivery of possession of the unit occurred? To strengthen its case, opposite party no.1 has took following pleas to justify the said inordinate delay:-

that certain revision in the sanctioned drawings and layout plans/master plan were sought from the competent Authorities vide Memo. Dated 23.08.2013;
that the National Green Tribunal, New Delhi passed orders in the years 2014-2016, which impacted the construction activities at the project site;
that the Haryana State Pollution Control Board issued order dated 08.11.2016, Annexure R-4, whereby all construction and demolition works in Delhi and NCR were ordered to be stopped;
that vide order dated 10.11.2016, the NGT again stopped all the construction and demolition activities and transportation of construction material;
that thereafter, vide order dated 09.11.2017, the NGT permitted carrying out of internal finishing and interior work, wherein no construction material was to be used; and
that since the construction work was put to halt in compliance of the aforesaid orders, as such, it became difficult to resume the work because of mobilization of labour force etc.

We have considered these contentions and are of the considered view that the same does not merit acceptance for the reasons stated hereinafter. It may be stated here that perusal of record reveals that booking of the unit in question was done on 20.03.2012 and as stated above, by 05.12.2013 substantial amount of Rs.1,38,10,958/-, which is more than 75% of basic sale price stood received by the opposite parties from the complainant. Thus, under those circumstances, as mentioned above, it has not been clarified by opposite party no.1 as to why they failed to complete construction within a reasonable period of three years from the date of booking and especially, when more than 75% of the sale price stood received from the complainant by 05.12.2013. The opposite parties also failed to clarify this Commission, as to why they received huge amount of Rs.1,38,10,958/-, from the complainant till 05.12.2013, knowing fully well that certain revision in the sanctioned drawings and layout plans/master plan were still to be got revised/finalized, which were ultimately got revised from the competent Authorities vide Memo. dated 23.08.2013. It is very significant to mention here that there is nothing on record to show that the above-said facts were brought to the knowledge of the complainant, at the time of booking of the said unit in the year 2012 or till 10.06.2020 i.e. the date when the opposite parties had already received huge amount of Rs.1,53,10,958/-, from the complainant or even thereafter.

The opposite parties should have obtained all the approvals/sanctions before booking the said unit. If the opposite parties chose to accept booking without obtaining statutory approvals/building plans and other necessary approvals, they are to blame to themselves only. The purchaser of the units, who had nothing to do with grant of statutory approvals, cannot be penalized by postponing the possession. Our this view is supported by the observations made by the Hon’ble National Commission in M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 Dec 2015. Relevant part of the said order reads as under:-

“…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents. In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA. If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout. The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

It has thus been proved by the admission of the opposite party no.1 only that money had been collected from the prospective buyers including the complainant starting from March 2012 itself, without obtaining statutory approvals/layout and service plans. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions/approvals is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

Furthermore, it is also held that if the opposite parties failed to complete the construction work and deliver possession of the unit to the complainant, within a reasonable period of three years from the date of booking i.e. from 20.03.2012 then they cannot take shelter of any subsequent events of alleged orders having been passed by the National Green Tribunal, New Delhi and Haryana State Pollution Control Board in the year 2016 i.e. after more than 4 years. Had the opposite parties completed the construction by the year 2015 i.e. within a reasonable period of three years, they would not have faced the alleged ban on construction activities. It is therefore held that the opposite parties were deficient in providing service and were negligent on this count and in no way can claim immunity, under the garb of force majeure circumstances.
Now, we will like to decide as to what amount of compensation should be granted to the complainants, for the period of delay in delivery of possession, starting from 19.03.2015 (three years reasonable period from the date of booking being 20.03.2012). It may be stated here that failure on the part of the opposite parties to provide possession of the unit within the stipulated period aforesaid amounts to deficiency in service and negligence. It is also matter of common parlance that for purchasing the unit/plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period (in the present case by 19.03.2015), the complainant suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer.

Recently in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020, while discussing the above authorities and discarding the one-sided terms of the Buyer’s Agreements, the Hon’ble Supreme Court awarded simple interest on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. Even in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, The Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today. The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case. Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

In the present case, the opposite parties had never delivered possession of the unit to the complainant till filing of this complaint. It was only, when this Commission passed the order for delivering possession, it was handed over to the complainant on 23.01.2021. A super senior citizen like the complainant has already paid huge amount of Rs.1,53,10,958/- and remained empty handed for more than 10 years and has to approach this Commission for redressal of her grievance. Her harassment and mental agony cannot be equated by payment of a few peanuts. The opposite parties have played fast and loose with the complainant and have caused harassment and mental agony to the very old Senior Citizen, which is unacceptable and this practice of the opposite parties needs to be deprecated. As such, the complainant under these circumstances deserves just and fair compensation. In our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by her, from the due date of possession onwards till delivery of possession thereof, that will meet the ends of justice.

Since, it is an admitted fact that possession of unit in question, had not been delivered either within a reasonable period of three years from the date of booking thereof or by the date this complaint has been filed (delivered during pendency of this complaint), as explained above, as such, there was a continuing cause of action in favour of the complainant to file this complaint, in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units is not delivered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard also stands rejected.
During the course of arguments, Counsel for opposite party no.1 placed reliance on document dated 07.02.2020, Annexure C-7 and stated that it is an occupation certificate in respect of the unit in question having been obtained by the company from the competent Authority, yet, thereafter, when the complainant was asked to take over possession on making remaining payment, she failed to take over the same. On the other hand, Counsel for the complainant has strongly refuted this contention on the ground that Annexure C-7 is the demand letter and not the occupation certificate. Thus, it is apposite here to reproduce the relevant contents of Annexure C-7 as under:-

“Indianbulls Real Estate To: monica1482@gmail.com

Fri, Feb 7, 2020 at 5:25 PM

Date: 06.02.2020

Ref No.: En/1011/20200206/10/5071

Customer ID: 4900510

Mrs. Urmila Gour

House no.132, Sector-10-A, Chandigarh - 160010

India

Contact: 9814147772

Email: monica1482@gmail.com

Subject: Intimation of Installment of Unit-1011 in Indiabulls Enigma - Gurgaon.

We are pleased to inform you that Occupation Certificate for the Tower in which your Unit is located, has been received from the Director General, Town & Country planning Department and according we are hereby offering you the possession of your apartment. Also find enclosed the final demand in this regard.

………………..xxxxxxxxxxxxxx……………

You are requested to please pay the aforesaid dues of Rs.48,04,155/- by way of cheque/Demand Draft favouring ATHENA INFRASTRUCTURE LIMITED Escrow Account at the earliest to avoid further payment of interest. Any dishonored cheque shall attract a charge of Rs.1000/- per instance.….”

A bare perusal of contents of Annexure C-7 reveals that in the letter dated 06.02.2020 was sent through email dated 07.02.2020, transpires that it has been simply mentioned therein that the opposite parties have received occupation certificate for the tower in which the unit in question is located but copy of the said occupation certificate was not sent to the complainant nor its number was given to her. During the course of arguments, occupation certificate has been placed on record, which is subject to certain conditions. We are of the considered view that Annexure C-7 is not an occupation certificate and it is only intimation of installments of Rs.48,04,155/- to be paid to the opposite parties, at their office located at Ground Floor, 448-451, Udyog Vihar, Phase V, Gurgaon-122016, Haryana. We are of the further view that it was mandatory on the part of the opposite parties to either send original occupation certificate or its number/date and name of the issuing Authority to the complainant. Thus, the opposite parties were not entitled to claim remaining EDC/other charges before delivering possession of the unit to the complainant.

Now the final question, which needs to be decided is, as to what remaining amount, the complainant is liable to pay to the opposite parties, in respect of the unit in question. To answer this question, we need to refer payment chart dated 14.01.2014, Annexure C-2, which has not been disputed by the parties, as under:-

	Area	Rate	Total
Area	3880.00
Basic Price		4000.00
Total Basic Price			15520000.00
Total discount			0
Net Basic Price			15520000.00
Car Park	3.00	0.00	0.00
EDC & IDC		315.00	1222200.00
Maintenance Security		100.00	388000.00
Club charges		200000.00	200000.00
		Total	17330200.00