JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainant booked a residential apartment with the OP namely M3M India Limited in a project namely ‘M3M Golf Estate’, which the said OP was to construct in Sector-65 of Gurgaon.  Unit No. MGE TW-14/01 a, in the aforesaid project was allotted to the complainant vide provisional allotment letter dated 26.06.2010, on a basic price of Rs.5,600/-.  The unit super area was to be about 3660 sq. ft.  The balance charges including EDC, IDC, IBMS, PLC, car parking charges etc. were to be informed to the complainant in due course.  The parties then executed an Apartment Buyers Agreement dated 15.01.2011, incorporating the terms and conditions agreed between them.  As per clause 14.1 of the agreement, the company proposed to hand over possession of the apartment within 36 months from the date of commencement of construction, which was to mean the date of laying of the first cement/concrete/mud slab of the tower, which was to be duly communicated to the allottee.  It is stated in the written version that the mud slab of the tower in case was laid on 23.03.2012.  The possession therefore, ought to have been delivered to the complainant by 23.03.2015.  Under clause 14.1 of the agreement, the OP was also entitled to an extension of six months.  Taking the extension into consideration the possession ought to have been delivered by 23.09.2015.  The possession of the apartment having not being offered even within the aforesaid extended period despite the complainant already having paid Rs.2,74,79,831.48p, the complainant is before this Commission with the following prayers:

1. That this Hon’ble Commission be pleased to direct to pay to the complainant a sum of Rs.2,74,79,831.48/- (Rupees Two Crores Seventy Four Lacs Seventy Nine Thousand Eight Hundred Thirty One and Forty Eight Paise Only) towards the advance payments made by her;

2. That this Hon’ble Commission be pleased to direct to pay to the complainant a sum of Rs.2,42,99,592/- (Rupees Two Crore Forty Two Lacs Ninety Nine Thousand Five Hundred and Ninety Two Only) towards interest @ 24% per annum from the date of deposits till payment;

3. That this Hon’ble Commission be pleased to award a compensation for a sum of Rs.2,00,00,000/- (Rupees Two Crores Only) for causing mental torture and harassment to the Complainant;

4. In the alternatively direct the Opp. Parties to hand over the possession of the residential apartment alongwith the complete infrastructure like roads, golf course, electricity and all other basic amenities and occupation certificate etc. to the Complainant within a period of one month.

5. The Opp. Parties be also directed to pay a sum of Rs.1,71,17,490/- towards interest as compensation @ 24% towards delay in handing over the delayed possession to the Complainant on the total amount paid before the date of possession and also the interest on amount after the due date of possession and also the interest on amount after the due date of possession calculated till 30^th October 2016 i.e. Rs.12831137/- till May 25^th 2013 (Due date of possession) and also refund Rs.23,93,371.48 taken as excess money (i.e. 2,74,79,831.48 – 2,50,86,460 = 23,93,371.48 + 1,71,17,490 = 1,95,10,861.48).Thus a total of Rs.1,95,10,861.48 is refundable/payable by the Opp. Parties.

2.      The complaint has been resisted by the OP namely M3M India Ltd. which has admitted the allotment made to the complainant as well as the payment received from her.  The Buyers Agreement executed between the parties has also been admitted.  This is also the case of the OP that an amount of Rs.20,06,067.43p is still outstanding against the complainant. 

3.      It transpired during the course of hearing that the Occupancy Certificate in respect of the apartment allotted to the complainant was received by the OP on 12.04.2017.  The learned counsel for the OP states that after receipt of the Occupancy Certificate, the possession was also offered to the complainant on 16.06.2017 and that the flat in question is still available for giving its possession to her.  The contention of the learned counsel for the OP is that the complainant should take possession of the flat allotted to her and she is not entitled to refund of the amount paid by her.  The complainant who is present in the Court alongwith her husband Som Bakshi states that she is not interested in taking possession of the flat and wants refund of the amount paid by her alongwith compensation as claimed by her. 

4.      The learned counsel for the OP, referring to the order of this Commission dated 24.07.2017, submits that in view of IA/9883/2017, filed by the complainant herself, she is not entitled to refund of the amount paid by her and she must take possession of the allotted flat.  I have perused IA/9883/2017.  In my opinion, the averments and the prayer made in the application do not come in the way of the complainant seeking refund of the amount paid by her alongwith appropriate compensation nor does the order of this Commission, permitting her to take possession in terms of the letter dated 16.06.2017 if she so desired, can be interpreted to mean that she is entitled only to possession of the flat and not to the refund of the amount paid by her with compensation. 

          In IA/9883/2017, the complainant referring to the letter of the OP dated 16.06.2017, inter-alia stated that though as against the original value of Rs.2,50,86,460/-, she had paid Rs.2,74,79,831.48p, she was being asked to pay a further amount of Rs.42,71,259/-.  The Commission was requested to issue appropriate direction in view of the aforesaid communications.  It is therefore, evident that the complainant was not agreeable to pay the amount demanded from her vide communication dated 16.06.2017.  The OP never offered possession of the flat, accepting the amount paid by the complainant as the total consideration.  Therefore, the aforesaid letter cannot be interpreted as a letter seeking possession of the apartment in terms of the letter dated 16.06.2017. 

5.      I therefore, hold that the complainant is entitled to refund of the entire amount paid by her alongwith appropriate compensation. 

6.      The next question which arises for consideration is as to what amount the complainant is entitled as compensation.  The husband of the complainant who has argued the mater on her behalf and with the consent and in the presence of the complainant, submits that the OP itself has revised the prices of such flats and the current price is almost double the price at which the allotment was made to the complainant.  However, there is no evidence on record of this Commission showing the current price being charged by the OP for the aforesaid flat.  The husband of the complainant states that he is carrying with him the advertisements issued by the OP.  However, there is no application filed by the complainant seeking permission to place additional documents on record.  In the absence of such an application, the document in the hand of the husband of the complainant cannot be taken into consideration. 

7.      The husband of the complainant also states that the prices of residential flats in the locality have almost doubled.  However, no evidence has been led by the complainant to prove the current price of a flat with same/comparable size and specifications and in the same/comparable locality and location.  Therefore, no reliance can be placed on the aforesaid statement of the husband of the complainant. 

8.      The husband of the complainant also states that the Cost Inflation Index issued by Ministry of Finance is a public document which he has downloaded and the said document can be taken into consideration.  I have perused the Cost Inflation Index filed by the complainant, today in the Court.  As noted earlier, the allotment to the complainant was made in June 2010.  The Cost Inflation Index in year 2010-2011 was 167.  The said index is 272 in the year 2017-2018.  Computed accordingly, there has been an increase of about 63% in a period of about 8 years.  On average annual basis, the increase in the Cost Inflation Index comes to much less than 10% per annum.  Therefore, if compensation is awarded on the basis of the Cost Inflation Index, the complainant would get compensation in the form of interest at the rate of less than 10% per annum.  It would also be pertinent to note here that the aforesaid Cost Inflation Index does not pertain only to the price of real estate.  It can also be hardly disputed that there has been erosion in the market value of the real estate in last about two years, particularly in NCR. 

9.      The complainant has stated in para 14 of complaint that she had paid interest to Indiabulls @ 11.75% per annum and to Citi Bank @ 11.5% per annum.  She has further alleged that later on, she had got merged/ported the loan to ICICI Bank and was paying interest to ICICI Bank Ltd. @ 9.45% and 10.4% per annum.  It is also evident from para 14 of the complaint that the loan from Citi Bank was taken in November 2013 whereas the loan was taken from Indiabulls in June 2014 and April 2016.  Considering the rate at which interest was paid by the complainant, she, in my opinion, should be awarded compensation in the form of simple interest @ 11% per annum on the entire amount paid by her to the OP.  According to the complainant, the loan taken from Indiabulls was Rs.1,43,00,000/- whereas the loan taken from Citi Bank was Rs.71,00,000/-. 

10.    The learned counsel for the OP submits that the period during which issuance of the Occupancy Certificate was delayed by the concerned authority, should be excluded while computing the interest.  I however, find no merit in the contention since the complainant cannot in any manner, be liable for the said delay and it is for the builder to take such delays into computation while fixing the time for delivery of the apartment. 

11.    For the reasons stated hereinabove, the complaint is disposed of with the following directions:

          (i)      The OP i.e. M3M India Limited shall refund the entire principal amount of Rs.2,74,79,831.48p, to the complainant alongwith compensation in the form of simple interest @ 11% per annum from the date of each payment till the date of refund.

          (ii)      The OP i.e. M3M India Limited shall pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

          (iii)     The payment in terms of this order shall be made within three months from today.

12.    After compliance of this order, the opposite party i.e. M3M India Limited shall be entitled to seek refund of the service tax if any, calculated from the complainant and collected from the concerned Department.