PER MR PREM NARAIN, PRESIDING MEMBER

                The present consumer complaint no. 79 of 2016 has been filed by Mr Umesh Kumar Agrawal against the opposite party DLF Homes Developers Ltd.

2.     The brief facts relevant for the disposal of the present consumer complaint are that the opposite party floated a project for sale of apartments under the name and style ‘The Primus DLF Garden City, Sector 82 A, Gurugram in the year 2012. The complainant approached the opposite party for a luxury flat. On the basis of the presentation made by the representative of the opposite party, the complainant applied in the said upcoming project of the opposite party. The complainant made an initial deposit of Rs.10,30,000/- on 14.02.2012 out of the total consideration of the flat of Rs.1,67,24,650/-. The opposite party acknowledged the receipt of the payment and confirmed the allotment of the unit bearing no. PME 032 along with parking numbers allotted as parking Nos.PE 1020/ 1020A to the complainant.  Pursuant to the allotment by the opposite party, the complainant was made to sign and execute an apartment buyer’s agreement with opposite party on 07.07.2012. As per the agreement, the possession was to be handed over to the complainant within 42 months from the date of the application and subject to complainant adhering to the payment schedule as provided by the opposite party.  The complainant till September 2015, had paid an amount of Rs.1,62,77,186/- to the opposite party. The opposite party has acknowledged the receipt of the payments and till date the possession has not been handed over to the complainant. The complainant has prayed the following:

1. Direct the opposite party to refund an amount of Rs.1,62,77,186/- towards principal along with Rs.71,85,027/- @ 18% per annum, i.e., from the date of actual deposit till the time of filing of the present complaint;

2. Direct the opposite party to pay interest @ 18% per annum from the date of institution of the present complaint till the time the actual payment made by the parties;

3. Direct the opposite party to pay Rs.10,00,000/- towards damages for mental agony, harassment and undue delay;

4. Direct the opposite party not to create any third party right/ interest in respect of flat/ apartment nos. PME 032 along with parking numbers allotted as parking no. PE 1020/1020A in the upcoming project namely “the Primus, DLF Garden City” situated at Sector 82 A, Gurugram, Haryana, till such time the refund along with interest is paid by the opposite party to the complainant;

5. Direct opposite party to treat the communication dated 17.11.2015 as notice of cancellation, cancelling the apartment buyers agreement dated 07.07.2012 as determined/ cancelled and not to levy any demand/ interest on any alleged balance sale consideration.

6. Award cost of the present proceedings; and

7. Pass such other or further order(s) as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.

3.     The present complaint was resisted by the opposite party by filing written statement. The complainant then filed a rejoinder. Both the parties filed their evidence by way of affidavit which were taken on record.

4.      Heard the learned counsel for both the parties and carefully perused the material on record. The learned counsel for the complainant has stated that the application for allotment was filed by the complainant before the opposite party along with initial booking amount of Rs.10,30,000/- on 14.02.2012. Vide letter dated 29.02.2012 the complainant was allotted apartment no. PME032 in ‘The primus – DLF Garden City, Sector 82 A, Gurugram’. Apartment buyer agreement was signed on 07.07.2012.

5.     The learned counsel has further stated that the complainant has paid about 98% of the total price of the flat. The possession was not delivered by the opposite party in time. As per clause 11 (a) of the apartment buyer agreement, the possession was to be given within 42 months from the date of the application and thus the possession was to be delivered by 21.08.2015. Learned counsel further argued that the whole agreement is based on the premise that ‘time is the essence’ though in clause 8 of the agreement this premise is mentioned only if the amount is to be received from the allottee. The learned counsel argued that the same clause should apply for the time lines of the builder. Accordingly, if the builder is unable to hand over the possession within the stipulated time, consequence of the agreement should follow. As per clause 14 of the apartment buyer agreement, a window has been given to the allottee to get his money back if the opposite party is unable to hand over the possession in time and if the allottee wants to exit from the project. Learned counsel has read out clause 14 which reads as follows:

“Failure to deliver possession by company: Remedy to allottee (s)

If for any reasons other than those given in clauses 11 (b), 11 (c) and clause 46, the company is unable to or fails to deliver possession of the said apartment to the allottee(s) within 42 months from the date of application or within any extended period of periods as envisaged under this agreement, then in such case, the allottee(s) shall be entitled to give notice to the company within ninety (90) days from the expiry of the said period of forty two (42) months or such extended period, as the case may be for terminating this agreement. In that event, the company shall be at liberty to sell and/ or dispose of the said apartment and the parking space (s) to any other party at such price and upon such terms and conditions, as the company may deem fit and thereafter the company shall within ninety (90) days from the date of full realisation of the sale price after sale of said apartment and the parking space refund to the allottee (s) without any interest, the amounts paid by the allottee(s) in respect of the said apartment and the parking space without deduction  of earnest money but after deduction of brokerage paid by the company to the broker/ sales organiser in case the booking is done through a broker/ sales organiser. For the avoidance of doubt, it is stated that the allottee(s) shall have no other right or claim against the company in respect of the said apartment and parking space(s).

If the allottee(s) fails to exercise the right of termination within the time limit as aforesaid, then the allottee’s right to terminate this agreement shall stand waived off and the allottee(s) shall continue to be bound by the provisions of this agreement.”

6.     Learned counsel for the complainant has stated that the complainant had applied within this window and letter dated 17.11.2015 was sent to the opposite party mentioning the deficiencies of the opposite party and asking for refund of the paid amount in accordance with the clause 14 of the agreement.

7.     In this letter dated 17.11.2015, the complainant had also written to the opposite party that he is cancelling the agreement. The opposite party vide letter dated 25.11.2015 replied that the work is about to finish and they will be applying for the occupation certificate and therefore, they will not accept the cancellation of the agreement and they will be suitably compensating the complainant for the delayed possession. Learned counsel for the complainant has argued that when there is a provision in the agreement in the form of clause 14 which allows the complainant to seek refund and the refund has been sought as per this provision, reply of the opposite party cannot be considered as a proper reply. The opposite party was contractually bound to act as per clause 14 of the agreement and the amount should have been refunded along with interest.

8.      On the other hand, the learned counsel for the opposite party has stated that if the complainant has applied for refund under clause 14 of the agreement, then the provision of clause 14 is to be read and understood. According to clause 14 of the agreement, money can only be refunded once the property in question is sold to a third party and after receiving the sale consideration from the 3^rd party, the money will be paid to the complainant without any interest. Moreover, when the builder had applied for the occupation certificate, the logic for seeking refund is not understood. Learned counsel has further submitted that there is no reference in the application that the application is under clause 14 of the agreement. There are many things written in the application which are not required as per the provisions of clause 14 of the agreement. Moreover, the complainant has asked interest @ 18% per annum, whereas, there is no interest payable as per clause 14 of the agreement. It was further objected to by the learned counsel for the opposite party that this application cannot be treated as filed under clause 14 of the apartment buyer agreement, because, apart from the points mentioned above, a request has been made that refund should be given within 30 days and there is no reference of brokerage, whereas clause 14 does not mention that refund could be made within 30 days from the date of application. The refund can only be made once the property in question is sold and the money is received by the builder. Moreover, the opposite party is also required to deduct the brokerage. As this application was not treated under clause 14 of the agreement, the opposite party did not cancel the agreement and it had replied vide letter dated 25.11.2015 that the complainant will be suitably compensated by paying @ Rs.20/- per sq ft per month for the period of delay in possession.

9.     Learned counsel for the OP further stated that the possession was due on 21.08.2015 and OC has been obtained on 07.10.2016 and the possession was offered on 27.01.2017 to the complainant. Thus, the delay was roughly for one and a half year which is usual in a big project and the OP is ready to compensate the complainant as per the apartment buyer agreement and this compensation is quite reasonable. It was further stated by the learned counsel that the complainant has paid on 02.09.2015 and 09.09.2015 an amount of Rs.7,22,423/- and Rs.1,80,757/- for which receipts have been issued. Thus, it seems that the complainant was willing to take the possession till 09.09.2015 but suddenly the complainant writes an application dated 17.11.2015 for termination of the agreement and for refund of the amount.

10.   I have carefully considered the arguments advanced by the learned counsel for both the parties. In the present case, it is seen that the complainant has paid to the opposite party till September 2015 an amount of Rs.1,62,77,186/-  perhaps keeping in view that the possession would be offered soon, however, suddenly he filed an application for refund of the amount paid by him. Clearly, the change of mind of the complainant cannot be understood to have been triggered by the delay in handing over the possession. The opposite party ultimately got the occupation certificate and then issued the offer letter, however, by that time, the complainant had already filed the complaint seeking refund of the amount paid. It is to be realised that the completion of the project requires huge finances which are mostly given by the allottees or the builder arranges from some financial institution. There has to be a cogent reason for seeking refund if the complainant decides to get the refund at the time when the flat is nearing completion and the opposite party was to apply for occupation certificate. It is true that an allottee is entitled to seek refund once the stipulated period for getting the possession is over and there is no hope of getting the possession within a reasonable period, but if the refund is sought on extraneous considerations like slow-down in the real estate market or chance of getting the refund along with higher rate of return, the deficiency of service on the part of the opposite party needs to be assessed accordingly and the request of the allottee for refund is also to be analysed keeping these factors in view. In the present case, clearly the possession was due on 21.08.2015 as per the agreement but the possession could not be offered in that period. Obviously, the opposite party is guilty of deficiency in service as they could not hand over the flat within the stipulated time. Clearly, the complainant is entitled to get his refund of the amount paid to the opposite party as the complainant has applied within 90 days from the date of due possession as per clause 14 of the agreement. Hence, I do not find any merit in the arguments of the learned counsel for the opposite party that the application dated 17.11.2015 sent by the complainant was not an application under clause 14 of the agreement. The complainant has taken precaution to apply within the window of 90 days given in this clause 14, otherwise, the right to seek refund stands closed as per this clause. It does not matter if the complainant had sought refund with interest and mentioned the short comings of the opposite party. The fact is that this application refers to clause 14 and has been filed within the given period of 90 days, therefore, it has to be treated as application filed under clause 14 only.

11.   Clause 14 of the agreement seems to be totally one sided and is clearly an example of unfair trade practice as it allows refund only after the property in question is sold to a third party. The opposite party shall keep on enjoying the money paid by the complainant and after the property is sold (there is no time limit for the builder to sell it), the amount is to be refunded without any interest.

12.   From the above examination, it is clear that though clause 14 allows the complainant to seek refund, but refund cannot be ordered on the basis of this clause. There is no agreement on the interest to be paid when the amount is to be refunded by the opposite party.  However, the complainant is definitely entitled to get interest on the amount of refund as the money paid by the complainant remained with the opposite party for a long period of time. The Hon’ble Supreme Court in the case of Alok Shanker Pandey Vs. Union of India & Ors., II (2007) CPJ 3 (SC) has held that:-

“9.  It may be mentioned that there is misconception about interest.  Interest is not a penalty or punishment at all, but it is the normal accretion on capital.  For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount.  Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period.  Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B.”

13.   The Hon’ble Supreme Court in the case of Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC) has reduced the rate of interest from 12% per annum awarded by this Commission to 9% per annum. Relying on this judgment as well as keeping in view the current interest scenario and the peculiar facts of the case as examined above, I deem it appropriate to allow interest @ 8% per annum on the amount of refund.

14.   Based on the above discussion, the Consumer Complaint no. 79 of 2016 is allowed and the opposite party is directed to refund the amount of Rs.1,62,77,186/- (Rupees one crore sixty two lakh seventy seven thousand one hundred eighty six only) paid by the complainant to the opposite party along with interest @ 8% per annum from the date of respective deposits till the actual payment. The opposite party shall also pay Rs.20,000/- (Rupees twenty thousand only) as cost of litigation to the complainant. This order be complied by the opposite party within a period of eight weeks from the date of receipt/ service of this order.