1. The present Review Application Nos. 18 to 32 of 2023 have been filed by the Opposite Party Developer i.e., BPTP Ltd., (hereinafter referred to as “the Developer”) praying for review of the Common Order dated 04.01.2023 passed by this Commission wherein Consumer Complaint Nos. 3023/17, 339/18, 340/18, 1130/18, 1204/18, 1211/18, 1516/18, 697/19, 1492/19, 1598/19, 1671/19, 1885/19, 2018/19, 1225/18, 255/19 and 300/20 were partly allowed by directing the Developer to either hand over the possession with delayed compensation or refund the deposited amount with interest as per the discretion of the Flat Buyers.
2. The relevant facts which are material to dispose of the present Review Applications, are that the Complainants/Non-Applicants were allotted different Residential Units in “TERRA” Residential Project, to be developed by the Opposite Party Developer at sector 37D, Gurugram, Haryana. Flat Buyers Agreements (hereinafter referred to as “The Agreement”) were executed between the Parties almost in the year 2012-2013. As per Clause 1.6 of the Agreement, the Opposite Parties were under an obligation to deliver the possession of the allotted Unit to the Flat Buyers within a period of 42 months from the date of execution of Agreement or sanction of Building Plan, whichever was later, extendable by another 180 days as grace period from the date of signing and execution of the Agreement. Since the Opposite Party Developer had failed to deliver the possession of the allotted Flats within stipulated period despite having received a substantial amount, alleging deficiency in service on the part of the Opposite Party Developer, the Non-Applicants/Complainants filed aforesaid Consumer Complaints claiming refund of the entire deposited amount along with interest and compensation.
3. This Commission vide its Order dated 04.01.2023 disposed of the Consumer Complaints by observing as under:-
“ In brief, it is the case of the Complainants/Unit Holders of the Project “TERRA” that despite being paid the substantial amount towards the total Sales Consideration of the allotted Units to the Opposite Parties Developer, they have miserably failed to hand over the possession of the Units, complete in all respect, within the stipulated time as promised in Clause 1.6 of the Flat Buyer’s Agreement and hence they are entitled for refund of the deposited amount with interest and reasonable compensation even though the Developer have obtained the Occupancy Certificate in the year 2021 i.e. after delay of 4 years from the committed date of delivery.
16. According to the Developer, the delay in completing the Project has occurred due to default on the part of the Complainants in making the timely payments of due installments. Having charged interest at the very high rate for the said delay, in my considered opinion, the Developer has condoned the said delay and cannot deny refund with compensation on account of the aforesaid condoned defaults. Even if, some of the Complainants have defaulted in making the payments to the Developer, the Complainants who admittedly did not commit any default cannot be penalized for the default on the part of the other buyers. This is more so when there is delay in completing the construction and handing over the physical possession on the part of the Opposite Parties Developer. The Developer cannot take the advantage of its own wrong. Delay in completion of the Project by the Developer was one of the reasons due to which the Complainants did not make the payment of the due instalments inasmuch as the payment was linked with the construction status of the Project in question.
17. The stand taken by the Opposite Parties Developer that the period of delivery of possession in 42 months as defined in Clause 1.6 of the Agreement is not sacrosanct and the delay is attributable to Force Majeure events, and, therefore, no deficiency of service can be attributed to them, is totally unsustainable, as the Opposite Parties Developer could not establish by means of any documentary evidence that the Project was delayed due to Force Majeure conditions.
18. In most of the Complaints, the Flat Buyer’s Agreement has been executed between the parties in the years 2012-2013 and the Opposite Parties Developer was under an obligation to complete the Project and hand over the possession latest by December, 2017 including the grace period of 180 days. It is the admitted case of the Developer that the Occupancy Certificate in respect of 4 Towers i.e. T-20, T-21, T-24 and T-25 has been obtained only on 09.12.2021 and for rest of 2 Towers they had applied for issuance of Occupancy Certificate to the Competent Authorities. Undoubtedly, there is an unreasonable delay of 4 years in completion of the Project. If a Builder/Developer fails to deliver possession of the flat/apartment booked with them, within the time period committed for this purpose and has failed to file documentary evidence to justify the delay in construction or handing over the possession, this, in my opinion, would tantamount to a defect or deficiency in the services rendered by them to the buyers and in such a situation, this Commission exercising the powers conferred upon it by the Act, would be competent to direct refund of the amount paid by the buyers to the Builder, along with appropriate compensation for the loss or injury suffered by the buyers on account of delayed possession.
19. At this juncture, placing reliance upon the decision of the Hon’ble Supreme Court in the case of Abhishek Khanna’s (Supra) Learned Counsel for the Developer has submitted that the Complainants are not entitled for refund of the amount since the Occupancy Certificate has been obtained by the Developer after completion of the construction work. Any direction for refund of the amount would jeopardize the interest other Home Buyers. The relevant para of the said judgement upon which reliance has been placed by the Developer, is as under:-
“Whether the Apartment Buyers are entitled to terminate the Agreement, or refund of the amount deposited with Delay Compensation.
The issue which now arises is whether the apartment buyers are bound to accept the offer of possession made by the Developer where the Occupation Certificate has been issued, along with the payment of Delay Compensation, or are entitled to terminate the Agreement.
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“.......We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees..”
20. As against this, learned Counsel appearing for the Complainants submitted that the Complainants are no more interested to take possession of the allotted Units after such a long delay of four years. It is stated by him that in the case of Emmar MGF Land Ltd. & Ors. vs. Amit Puri - [II (2015) CPJ 568 NC], this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation.
21. He has further relied upon the decision of the Hon’ble Supreme Court in the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, wherein it has been observed as under :-
“.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”
22. Recently, the Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor - Manu/SC/0433/2022 has held as under:-
“A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. This position is similar to the mandate Under Section 18 of the RERA Act 14 with respect to which the Court clarified the position in Para 25 of Imperia case referred to herein above.”
23. Having given our thoughtful consideration to the aforesaid proposition and case laws and especially in the light of the recent decision of the Hon’ble Supreme Court in the case of Experion Developers (Supra), we dispose of all the Consumer Complaints with the following directions:-
(A) IF THE COMPLAINANTS ARE WILLING TO TAKE POSSESSION WITH DELAYED COMPENSATION:
(i) The Opposite Parties Developer shall hand over the possession of the allotted Units, complete in all respects, to the Complainants within a period of 8 weeks from today along with Occupancy Certificate;
(ii) The Opposite Parties Developer shall pay the delayed compensation to the Complainants in the form of interest @9% p.a. from the committed date delivery till offer of possession, within a period of 8 weeks from today failing which the amount shall carry interest @ 12% p.a. for the same of period.
(iii) The Opposite Parties Developer shall work out the Compensation payable to the Complainants as per direction (ii) above after making adjustment of the outstanding amounts payable by the Complainants in terms of the agreement. In case any balance amount is to be paid by the Complainants in terms of above calculation, the same shall be paid by them within the same period.
(iv) The Developer shall also pay 25,000/- as the cost of litigation to each of the Complainants.
ALTERNATIVE RELIEF
(B) IF THE COMPLAINANTS ARE INTERESTED TO TAKE REFUND WITH INTEREST INSTEAD OF POSSESSION:
The Opposite Parties Developer shall refund the entire principal amount to the Complainants along with interest @9% p.a. from the respective date of deposits till actual payment, within a period of 8 weeks from passing of this order failing which the amount shall carry interest@12% p.a. for the same period. The Developer is also liable to pay ₹25,000/- as costs of the litigation to each of the Complainants. The Developer shall not be entitled to forfeit any amount paid by the Complainants.”
Before parting with the matter, I want to make it clear that since the Consumer Complaint No. 1211 of 2018 has been admitted u/s 12 (1)(c) of the Act, all the pending applications for impleadment of the parties as Co-Complainant and deletion of the names from the array of parties are allowed. It is further clarified that in cases, where the Application was moved before the RERA Authorities for withdrawal of the Complaint, the Complainants shall not be entitled for any relief under this Order if the Application is still pending with RERA Authorities.
The Complaints are disposed of as above and the pending Applications, if any, also stand disposed off.”
4. The Applicant/Opposite Party Developer have filed the present Review Applications before this Commission, inter alia, stating that this Commission in its decision dated 4.1.2023 has merely relied on the averments of the Complainants that the Project is incomplete and no possession has been granted whereas no documents have been placed on record to substantiate the said claim made by the Complainants. It is further stated that the Project in question had a total 456 Residential Units spread across 6 Towers, from Tower 20 to Tower 25. The Opposite Party Developer had already issued offers of possession for 4 Towers, namely Tower 20, Tower 21, Tower 24, and Tower 25 and had already applied to the Competent Authorities for the grant of Occupancy Certificates for the remaining 2 Towers, i.e. Tower 22 and Tower 23 after the construction was completed. They had received the Occupancy Certificate on December 9, 2021. It is also submitted by the Opposite Party Developer that various facilities like Sun City High School, Euro International Primary School and Signature Multi Speciality Hospital with about 300 beds in patient and market place have been provided in the Project. Out of the total 456 units, the 357 units have been sold. The Project in question also has plethora of amenities such as Clubs, Parks, Gymnasium, Pool Area, Play Area for children etc. It is also submitted that the Complainants in the present complaints could be categorized in following three categories:-
(i) Units where construction has been completed and offer of possession has been given after receiving the Occupation Certificate i.e. In Consumer Complaint Nos. 3023 of 2017, 1204 of 2018, 1211 of 2018, 1225 of 2018, 255 of 2019 and 300 of 2020;
(ii) Units where construction has been completed and Occupation Certificate has been applied for, i.e., Consumer Complaint Nos. 1211 of 2018 (Richa Arora and Pranav Mehta), 697 of 2019, 1885 of 2019 and 2018 of 2019 and
(iii) Units which have been terminated on account of non-payment of instalments by the Unit Holders, i.e., Consumer Complaint Nos. 339 of 2018, 340 of 2018, 1130 of 2018, 1211 of 2018 (Rifaquat Ali Khan Mirza), 1211 of 2018 (Mr. Shivang Agrawal), 1516 of 2018, 1492 of 2019, 1598 of 2019 and 1671 of 2019.
5. It is categorically submitted by the Learned Counsel for the Developer that in view of the facts that the construction of all the six Towers of the Project had been completed; Occupation Certificate had been obtained on 09.12.2021 with respect to four Towers i.e. T20, T21, T24 and T25 and the offer of the possession had already made to the Flat Buyers of these Towers; Occupation Certificate had already been applied for with respect to two remaining Towers i.e. T22 and T23 and more particularly all the facilities and amenities as stated above had been provided in the Project and there was default on the part of Flat Buyers in making the due payments of installment which resulted in delay in completion of the Project, it was not justifiable at this stage to direct the Developer to refund the amount deposited by the Complainants with interest and compensation. At the most, the Complainants can be compensated for delay by compensation which has already been provided in the terms of the Agreement.
6. With regard to the cases, where the allotment had been terminated due to non-payment of installments by the Complainants, it is vigorously urged that the Developer be allowed to refund the deposited amount after deduction of 10% of the total Sale Consideration as specified in the terms of the Agreement. It is contended that the Consumer Complaint Nos. 1516 of 2018 and 1671 of 2019 are hopelessly barred by limitation and deserve to be dismissed on that ground. Learned Counsel further pleaded that the delay in completion of the Project was due to the reasons which were beyond the control of the Developer. The entire Nation was greatly impacted due to Covid 19 Pandemic which resulted in the delay in grant of Occupation Certificate by the Concerned Authorities. Finally, it is prayed that under these circumstances, the Opposite Party Developer cannot be asked to refund the amount deposited by the Complainant with compensation which will certainly jeopardize the interest of the other Complainants and the Developer have to also face the financial crunch.
7. As against this, Learned Counsel appearing for the Complainants supports the well-reasoned order passed by this Commission after due appreciation of the facts of the case and the evidence adduced by the parties.
8. Having bestowed my thoughtful consideration to the rival contentions of the Learned Counsel for the parties on the issue of review of the Order dated 04.01.2023, I am of the considered view that there is merit in the submissions of the Learned Counsel for the Developer and the Review Applications deserve to be allowed.
9. There is no denial to the fact from either side that the Flat Buyer Agreements in most of the cases were executed between the parties during the year 2012-2013. Further, there cannot be any dispute to the fact that in terms of the Clause 1.6 of the Agreement, the possession of allotted Units, complete in all respect, was to be delivered to the Flat Buyers within a period of 42 months from the date of execution of Flat Buyer Agreements or sanction of Building Plan with a grace period of 180 days which means the most of the Flat Buyers were to be delivered possession of the booked Units latest by the year 2017. The Opposite Party had obtained the Occupation Certificate in respect of 4 Towers on 09.12.2021 and offered possession of the Residential Units to the Flat Buyers. Hence, there is an admitted delay of more than 4 years in offering the possession from the committed date of possession. The Opposite Party Developer had also completed the construction of the remaining two Towers and had applied for Occupation Certificate to the Competent Authorities. The basic amenities as well as the facilities as promised to the Flat Buyers had also been provided by the Opposite Party Developer which fact can be substantiated by the Photographs of the Project filed by the Opposite Party in these Review Applications.
10. In Review Application No. 35 of 2022 filed in Consumer Complaint No. 2035 of 2018 titled Parklands Pride Buyers Association Vs. BPTP Ltd., - decided on 04.08.2022, a larger Bench of this Commission had discussed all the identical issues raised in the present Review Applications and after considering all the facts of the case, allowed the Review Application as under:-
“ Learned Counsel for the Review Petitioner further strenuously contended that there is no dispute between the parties that after the completion of the Project, in all respect including road, sewer, water lines, electricity etc., the Occupation Certificate was issued by the Competent Authorities and an offer of possession was made to the individual Complainants with respect to the dwelling Unit booked by them. The copies of the Completion Certificates in respect of the dwelling units booked by the Complainants have been annexed with the Application. It is vehemently pleaded by the Learned Counsel for the Applicant that non-filing of the Occupation Certificates on the record due to an oversight, cannot be considered, by any stretch of imagination, a ground for an option to the Allottees to seek refund instead of possession in the light of the decision of the Hon’ble Apex Court in the case of Abhishek Khanna (Supra) wherein it has been specifically held that the allottees are obligated to take possession of the Apartments, since construction was completed, Occupation Certificate has been issued by the Competent Authorities and possession has been offered. She has further vigorously submitted that the alternate direction given by this Commission to the Opposite Party Developer to refund the amount with interest @ 9% p.a. to the Flat Buyers who are not willing to take possession despite the fact that all the necessary facilities and amenities have been provided in the Project and 250 families are already residing in the Colony, requires to be recalled and all the Complainants are to be directed to take possession of the respective booked Dwelling Units with delayed compensation subject to adjustment of the outstanding dues as demanded by the Opposite Party.
07. We have given our thoughtful consideration to all the submissions made by the Learned Counsel for the Review Petitioner/Opposite Parties.
08. Having perused the Order sought to be reviewed and the grounds urged in the Review Application, we are of the considered view that there is some substance in the submissions made by the Learned Counsel for the Opposite Parties. The Members of the Complainant Association had booked their Flats/Apartments with the Opposite Party Developer during the period from April 2011 to July 2012 and thereafter the Floor Buyers Agreements were executed between the respective parties in the year 2013. In terms of Clause 5.1 of the Agreement, the possession of the Apartments booked by the Members of the Complainant Association was to be delivered to them within a period of 30 months from the date of execution of the Agreement with a grace period of 180 days that means the Developer was under an obligation to complete the Project and offer the possession of the dwelling units, complete in all respect around July 2015. There is no dispute between the parties that the Occupation Certificate in respect of the Project, namely “Parkland Pride” was issued by the Competent Authorities to the Opposite Party Developer in June 2018 and as such admittedly there is delay of more than 3 years in completing the Project. It is also undisputed that an offer of possession after obtaining the Occupation Certificate was made to the Members of the Complainant Association in July 2018. As extracted above, the Hon’ble Supreme Court in the case of Abhishek Khanna (Supra) has laid down a principal that in the cases where the Occupation Certificate has been obtained by the Developer, the Flat Buyers are obligated to take possession of the apartment, however, they will be entitled for the delayed compensation from the committed date till offer of possession. In the Review Application, it has been submitted that the facilities/amenities which have been alleged to be not provided as per the Affidavits sought to be filed on record by Interim Application No. 3452 of 2021, have already been provided in the Project. For sewerage, the Opposite Parties had been granted consent to establish for the Project on the basis of which STP has been made operational and functional and treated water is being used in parks and for horticulture purposes. Further, Drinking Water is being supplied for 24 hours through overhead tanks of the Colony. The electricity scheme has been sanctioned and partial load of 2 MVA has been released. The regulation connection for water and sewer has been applied with HSVP. The Multiple Rain Water Harvesting System is in place in the colony. Besides, there are many high school and junior schools in vicinity of the Project etc. (Emphasis supplied)
09. For the reasons stated above and in the interest of justice, we are of the considered opinion that the Review Application filed by the Opposite Parties has some merit and deserves to be allowed. Consequently, while allowing the Review Application we recall the direction to the Opposite Parties to refund the principal amount deposited by the Members of the Complainant Association who are not interested in taking the possession and direct the Opposite Parties to deliver the possession to the Members of the Complainant Association in terms of the Order dated 14.02.2022.
11. In the present Consumer Complaints also, the construction of all the six Towers have been completed. The Opposite Party Developer had obtained Occupation Certificate on 09.12.2021 in respect of Tower Nos. T-20, T-21, T-24 and T-25 and offer of possession had been made to the Flat Buyers who had been allotted Residential Units in these Towers. The Occupation Certificate with regard to Tower Nos. 22 & 23 had also been applied for and was expected to be obtained within a period of next six months. From the perusal of the photographs filed by the Review Petitioner along with applications, it is crystal clear that all the basic amenities and facilities as stated above, had been provided by the Opposite Party Developer.
12. Respectfully following the decision of the Larger Bench of this Commission in Review Application No. 35 of 2022 filed in Consumer Complaint No. 2035 of 2018 titled Parksland Pride Buyers Association Vs. BPTP Ltd. (decided on 04.08.22), I allow the present Review Applications and recall the direction to the Opposite Party Developer to refund the deposited amount to the Complainants who are not interested in taking the possession and direct them to deliver the possession of the booked units in terms of Order dated 04.01.2023.
13. However, it is made clear here that in the cases where the allotments had been terminated due to default in payment of the due installments in time, the Complainants, if so interested, shall also be entitled for possession of the booked Units inasmuch as the Complainants did not make the payment due to delay in completion of the Project by the Opposite Party Developer. Further, in case the Complainants are willing to take refund of the deposited amount, the Opposite Party shall refund the amount in terms of Order dated 04.01.23 without any deduction of amount.
