Date: 08.08.2017

ORDER                                  

      Mrs. Manju Bala Sharma, Member

1. Instant complaint has been filed by complainant on 05.11.2015 against the OP stating therein that complainant had booked a residential unit in the project “Earth Towne” with OP. OP allotted flat no. 1803 in ‘W’ Tower ETH-4345. Complainant further stated that as per the contract the delivery of the allotted flat was to be done in the year 2015 but no construction was started on the construction site and even after visiting a number  of times the corporate office, registered office and construction site no action has been taken by OP in this regard. Complainant send  notices dated 25-07-2015,13.05.2015  and several email to OP but  to no effect.     Aggrieved from the acts of the OP complainant approached this forum to direct OP to refund Rs. 8,54,100/- and Rs. 8,00,000/- towards compensation  for the physical strain and mental agony suffered by him and Rs. 5,000/- as litigation cost.
2. OP filed its written statement admitting therein that  a residential unit was booked by the complainant in the project “Earth Towne” and an allotment letter dated 18.04.2013 was executed whereby he had opted for “Construction payment plan”. OP alleged that the area of the booked unit as per allotment letter was never changed and complainant was reminded to complete payment of 30 % as per schedule payment plan but he failed to comply with the same. OP denied to refund Rs. 854100/-  as complainant was bound to comply with the allotment letter. OP therefore prayed to dismiss the complaint against it with heavy costs.
3. Complainant has filed his own affidavit affirming the facts alleged in the complaint. On the other hand Mr. Gulshan Aggarwal  has filed affidavit in evidence on behalf of O.P. testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case as well as written submissions filed by both the parties and have also heard the complainant in person  of Ld. Counsel  for the O.P.
5. The contention of the complainant is that he booked a residential flat in March 2012 after paying Rs. 2,84,700/- each on 14.03.2012, 18.08.2012 and 01.02.2013 to the OP and flat no. 1803 in “W” Tower ETH -4345 was allotted in the name of the complainant and builder buyer agreement was executed between the parties. The facts of booking , payment of Rs. 284700/- each  on 14.03.2012, 18.08.2012 and 01.02.2013 to OP and allotment of flat no. 1803 in “W” Tower ETH -4345 and builder buyer agreement entered into between the parties has been admitted by the OP.  The contention of the complainant that he visited the site and did not find any construction work started on the site on which  he sent  a letter to the OP asking it to refund the amount and thereafter he sent reminders as well as several emails to  OP the but OP did not sent any reply has  remained unrebutted. As OP has  not  stated  superficially either in its reply or showed by way of evidence   the  progress of the construction work at  the site.  Complainant also referred to clause12 of the Builder Buyer Agreement vide which OP represented to the complainant that the construction of the flat was likely to be completed within 36 months computed from the date of receipt of all approvals viz but not limited to sanction of final and / or modified / revised layout plan , Height Clearance , Fire Department clearances, Environment Clearance , Pollution Clearance, Mining Permissions etc by the company excluding additional grace period of six months, subject to force majeure circumstances, due to Government Rules, Orders , Notifications etc and reasons beyond the control of the company.  As far as the statutory approvals  are concerned the same were to be obtained by the OP and the complainant cannot be held responsible for any delay in grant of such approvals though  it is not the case O.P. that the construction could not be completed for want of aforesaid statutory approvals. The contention of the OP  is  that the project could not be completed on account of recession in the real Estate market and for non-payment of the installments due to the  complainant. As OP has not started the construction work at the site and OP has not produced anything on record to rebut the allegations of the complainant for  not starting of construction work , We cannot expect the  complainant to make the payment as per the payment plan even when the project  has not started. Counsel for OP has relied upon clause 26 A of Builder Buyer Agreement and states that OP is entitled to cancel the allotment and forfeit the earnest money along with interest on the delay in payment and balance amount after adjustment of interest payable on the unpaid amount if any shall be refunded to the complainant without any interest to which the complainant has vehemently challenged. Whether the complainant can challenge the forfeiture of earnest money as per clause 26 A of Builder Buyer Agreement? We are of the  opinion that a home buyer can challenge the developer/ OP’s decision to forfeit the earnest money if cancellation is sought at an early stage and where the developer / OP has not even started the project.  In this case as the developer/ OP  has not even started the project and OP has no right to forfeit the earnest money as OP cannot take the benefit of its own wrong by  way of forfeiting the earnest money. 
6. From the above discussion we are of the opinion that there is deficiency in service on the part of the OP and complainant is entitled for the refund the amount paid to the OP. We  therefore direct OP to refund Rs. 8,54,100/- along with interest @ 10% from the date of filing of  this complaint i.e. 05.11.2015 till realization and Rs. 1,00,000/- as compensation for mental pain and harassment and Rs. 10,000/- as  cost of litigation.
7.   This order shall be complied with by the OP within a period of 30 days from the date of receipt of this order failing which interest @ 10% shall be payable on the entire above mentioned amount from the date of this order till realization. 
8. Copy of this order be sent to all the parties free of cost.   File be consigned to Record Room. 

                        Announced this ___________day of __________2017.