JUSTICE V.K. JAIN, PRESIDING MEMBER

The complainant booked a residential plot with the opposite party in a project namely “DLF Garden City’, which the opposite party is developing in Sector-91 and 92 of Gurgaon.   A plot bearing No. A-17/1 admeasuring 250.80 sq. metres in the aforesaid project was allotted to the complainant for a total agreed consideration of Rs.1,19,98,272/-.  The parties entered into a Plot Buyers Agreement dated 22.12.2011.  As per Clause 11(a) of the said agreement, the opposite party was to endeavour to offer possession of the plot within 24 months from the execution of the agreement.  The possession therefore ought to have been offered by 22.12.2013.

2.     Vide letter dated 09.12.2014, the opposite party informed the complainant that the final area of the plot was 375.95 Sq. Mt. as against the original area of 250.80 Sq. Mt.  He was asked to remit the balance payment and visit the site to see the development.  The complainant however rejected the plot having area of 499.96 sq. yards (375.95 Sq. Metres) on the ground that he did not have the capability to pay for the same.  Vide letter dated 12.08.2015, he sought either allotment of original area of 299.96 sq. yards or refund of the amount paid by him, alongwith interest @ 18% per annum.

3.     Vide email dated October 17, 2015, the opposite party informed the complainant that they would be resizing the plot to 300 Sq. Yards but the plot would become corner with green abutting and therefore the PLC applicable would be 20% as against 15% charged from him.  Vide email dated October 29, 2015, the complainant informed the opposite party that they had offered an irregular plot having front of 7.62 metre and backside 12.38 metres to him, which was not acceptable to him at any cost.  He also wrote that he had never been informed about the irregular plot.  He therefore, sought refund of the amount paid by him along with interest @ 18% per annum.  The opposite party having failed to refund the aforesaid amount, the complainant is before this Commission, seeking refund of the amount paid by him to the opposite party along with compensation in the form of interest @ 18% per annum.

4.     The complaint has been resisted by the opposite party which has admitted the allotment made to the complainant as well as the fact that it had initially increased the area of the plot to 499.96 sq. yards.  It is further stated that the opposite party had vide email dated 17.10.2015 informed the complainant that they were ready to resize the plot to 300 sq. yards as per the original layout plan.  It is also claimed that the opposite party never made a commitment to give possession of the plot within 24 months since it was only to make endeavour to offer possession within the aforesaid period.  It is also claimed that the complainant has failed to pay the balance amount to the opposite party, in terms of the revised final statement of account dated 20.6.2016.

5.     The first question which arises for consideration in this complaint is as to whether the opposite party was under an obligation to offer possession of the plot to the complainant within 24 months of the execution of the Buyers Agreement.  In my view, when a builder undertakes to endeavour to offer possession within a specified period, the possession ought to be offered within that much period, unless it is prevented by sufficient cause from making such an offer.  The opposite party has failed to establish that the offer for possession of the plot was delayed on account of reasons beyond its control.  In the absence of such reasons, the possession ought to have been offered within 24 months from the date on which the Buyers Agreement was executed.  In fact, the opposite party did not offer a plot of the agreed size of 300 sq. yards to the complainant even on 09.12.2014, about one year after the committed date of possession, when it intimated a unilateral increase in area from 250.80 sq. metres to 375.95 sq. metres.  The offer made on 09.12.2014 therefore, was not in conformity with the Plot Buyers Agreement executed between the parties.  Consequently, the complainant cannot be compelled to accept possession of the plot even if a plot measuring about 300 sq. yards is now offered to him by the opposite party.  Since the opposite party defaulted in performance of its contractual obligation of offering possession of the plot to the complainant by 22.12.2013, the complainant has become entitled to refund of the entire amount paid by him, along with compensation in the form of interest.

6.     The learned counsel for the opposite party contended that vide letter dated 12.8.2015, the complainant had agreed to accept allotment of a plot admeasuring 300 sq. yards and in view of the said agreement, he cannot be allowed to seek refund of the amount paid by him, if the opposite party is ready to offer a plot of that size to him.  A perusal of the email sent by the complainant to the opposite party on October 29, 2015 would show that the plot offered by the opposite party to the complainant was irregular plot since front of the said plot was 7.26 mtr., whereas its backside was 12.38 metres.  A plot of irregular size was not at all acceptable to the complainant.  Though, the learned counsel for the opposite party denied having received the aforesaid email from the complainant and pointed out that the copy of the email filed by the complainant is not addressed to the opposite party, the complainant who was present in the Court, pointed out that the receipt of email dated 29.10.2015 has not been disputed by the opposite party in the written version filed by it and in any case he was ready, if so directed, to place a copy of the email actually sent to the opposite party on October 29, 2015, on record.  On a perusal of the complaint, I find that in Para-15 of the complaint, the complainant expressly referred to his email dated 29.10.2015 sent in response to the email of the opposite party dated 17.10.2015.  In the written version the opposite party has not denied having received the email dated 29.10.2015 from the complainant.  The written version of the opposite party therefore contains an implied admission with respect to the receipt of the email dated 29.10.2015 from the complainant.   In view of the said admission, the contention that the email dated 29.10.2015 was not received by the opposite party cannot be accepted.

7.     While responding to para-15 of the complaint which has a reference to the email of the complainant dated 29.10.2015, the opposite party did not claim that the plot offered to the complainant did not have lesser width on the front as compared to its width on the back.  It is therefore, evident that an irregular plot having front of 7.62 metre and back of 12.38 metre was offered to the complainant.  It can hardly be disputed that an allottee is entitled to a regular plot i.e. a plot having equal width on the front as well as back and cannot be compelled to accept an irregular plot which is less wide on the front as compared to its back side.  The complainant therefore was justified in refusing to accept the allotment of the aforesaid plot even if its area was about 300 sq. yards.

8.     It was contended by the learned counsel for the opposite party that they can explore the possibility of altering the dimension of the plot so as to convert it into a plot having same width on the front as well as on the back.  No such offer is contained in the written version filed by the opposite party.  In any case, since the offer for possession is no more acceptable to the complainant, and he cannot be compelled to accept the allotment at such a belated stage even if the plot is of a regular size, the complainant, in my view, is entitled to refund of the amount paid by him, along with appropriate compensation.

9.     As regards the quantum of compensation, the learned counsel for the complainant stated during the course of arguments that though the complainant has claimed a higher interest, he was, on instructions from the complainant, who was present in the Court, restricting the claim to the compensation in the form of interest @ 10% per annum from the date of each payment, so as to avoid any further litigation in the matter.

10.   The complaint is therefore disposed of with the following directions:

(i)     The opposite party shall refund the entire amount of Rs.1,38,67,768/- received by it from the complainant to him, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid amount, along with compensation, in terms of this order, is actually paid.

(ii)    The payment in terms of this order shall be made within three months from the date of this order;

(iii)   The opposite party shall also pay a sum of Rs.10,000/- as cost of litigation, to the complainant.