1.   The present Consumer Complaint (CC) has been filed by the Complainants against the opposite parties as detailed above, inter aila praying for:-

(i)  refund of Rs.51,12,310/- paid by the complainants to the opposite

 party (including non-refundable payments) alongwith interest @18%  

 p.a.

(ii) Rs.5,00,000/- as compensation towards undue hardship and injury   

     both physical and mental.

(iii) to pay Rs.1,00,000/- towards cost. 

2.       Notice was issued to the opposite parties on 08.05.2018 giving them 30 days’ time to file their written statement.

3.       It is averred/stated in the complaint that:-

i)        That the complainants jointly booked an apartment on 10.01.2014, in the residential Project launched by the OP namely, ‘Godrej Summit’ bearing residential Apartment No. C1501, 14^th Floor, Sector 104, Gurgaon, Haryana, having super Built Up Area of 2324 sq. ft. Rs.10.00 lakh was paid by the complainants to the OPs as application money. On 20.06.2014, ‘Standard terms and conditions for provisional allotment’ was executed between the complainants and the opposite parties. The total consideration for the flat was Rs.1,94,86,560/-, out of which, the complainants paid Rs.51,12,310/-. The OPs were liable to handover the possession of the unit within 42 months from the date of buyer’s agreement with six months grace period.

ii)       Upon final construction of the project the promised amenities were nowhere to be found.   The complainant had purchased the apartment based on the brochure and promises made by the opposite party.  That the Opposite party has  duped the complainants into buying a sub-standard apartment based on false and misleading advertisements and the OPs failed to fulfil their obligations leads to breach of contract, hence, the complainants approached for cancelling their apartment and obtain full refund of the amount paid by them.  The OPs refused to refund the sum paid by the complainants.  The OPs offered a sum of Rs.4,22,845/-. The complainants sent a legal notice to the opposite parties on 27.09.2017. Hence, the complainants filed this complaint. 

4.       OP in their written statement/reply stated that :-

1. The complainants paid 25% of the total consideration amount, 20% of the total consideration (Earnest Money) which was meant to ensure performance, compliance and fulfilment of obligations and Responsibilities of the buyer.  The opposite parties duly completed the construction as promised and had obtained the occupation certificate date 20.06.2017.  The OPs issued possession letter cum demand of Rs.1,55,494,84/- vide letter dated 28.06.2017.  The complainants committed a default as per clause 8 of the agreement in as much as they failed to pay the balance consideration of 75% as promised under the Application Form, Allotment Letter and the Agreement.  Instead of paying the balance consideration, the complainants sought cancellation of their flat.  There is a downward trend in the prices of the flat. Due to fall in the market price of the flat, the OPs have suffered loss of interest, as the complainants failed to pay the outstanding amount in a timely manner.  The complainants are wrongfully trying to evade from their contractual obligations by confusing the amount paid at the time of application/booking i.e. 9,90,000/- (wrongly mentioned as Rs.10.00 lakh) as the ‘earnest money’ in complete contrast to what was clearly agreed under the Contract i.e. 20% of the sale consideration.  By doing so, the complainants are trying to burden the OPs with a huge loss.

2. The complainants have on numerous occasions committed default in making timely payments and as a goodwill gesture OPs have also given an interest waiver to the complainants. The other allegations are denied by the opposite parties.

5.       Evidence by way of affidavit was filed by the complainants on 28.08.2018 and affidavit of evidence was filed by the OPs on 22.11.2018 broadly on the lines of averments made in the complaint.

6.       Heard counsels of both sides. The details of the flat allotted to the Complainants/other relevant details of the case are given in the Table below:-

7.       Heard counsels of both sides.

8.       It was argued by the complainants, relying on judgment of this Commission in CC No. 438 of 2019 in Ramesh Malhotra & Ors. Vs. Emaar MGF Land Ltd. & Anr. that, even if OPs are entitled to forfeit any amount, they are entitled to only forfeit the amount which was paid to them by the complainants at the time of booking.  On the other hand, OPs have argued that as per application form, 20% of basic sale price constitute the earnest money.  As per BBA, committed date of possession was 48 months (including grace period of 6 months) from the date of allotment letter dated 20.06.2014, i.e. 20.06.2018.  Occupation Certificate was granted on 20.06.2017 and possession was offered on 28.06.2017.  OPs completed the project/apartment with all amenities as promised.  On numerous occasions complainants defaulted in making timely payments.  Complainants failed to take possession of the unit and pay balance consideration of 75%.  Owing to the default on the part of complainants, OP was left with no option but to terminate the Apartment on 19.09.2019.  Due to actions of complainants, OPs have suffered losses.  Complainants are not taking the possession due to fall in current market value of the apartment.

9.       In the present case, the OPs after obtaining the OC, have offered possession before the committed date.  It is the complainants who have failed to make the remaining payments and to take the possession.  Hence, the action of the OPs in cancelling the apartment and forfeiting the amount as per terms and conditions of the application form and/or the BBA cannot be faulted with.  However, the condition of forfeiture of 20% of BSP, being the earnest money liable for forfeiture in case of cancellation appears unreasonable.  It will be in the interest of justice and fair play to both sides, if OPs are allowed to deduct only 10% of the BSP as earnest money i.e. Rs.17,08,140/- and refund the balance amount to the complainants.

10.     For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i) The OPs shall deduct only 10% of the BSP i.e. Rs.17,08,140/- only towards cancellation of the said apartment and refund the balance amount Rs.34,04,170/- (Rupees thirty four lakh four thousand one hundred seventy only)  (Rs.,51,12,310/- minus Rs.17,08,140/-) alongwith simple interest @ 6% per annum from the date of each payment till the date of refund.  The amount refundable mentioned in this para is subject to verification of actual amount paid by the complainants based on receipts etc.

         (ii) Parties to bear their respective litigation costs. 

         (iii) The liability of the OPs shall be joint as well as several.

(iv) The payment in terms of this order shall be paid within three months

from today.

(v) In case the complainants have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainants. The complainants would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

11.     The pending IAs, if any, also stand disposed off.