1.      Heard AR of complainant and Mr. Pravin Bahdaur, Advocate, for the opposite parties.

2.      Mrs. Shallu Sharma has filed above complaint, for directing the opposite parties to (i) refund Rs.14515669/- with interest @18% per annum, from the date of deposit till the date of refund; (ii) pay Rs.2500000/-, as compensation for mental agony and harassment; (iii) pay Rs.200000, as costs of the litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that M/s. Adani M2K Project LLP (opposite party-1) was a limited liability partnership firm, registered under Limited Liability Partnership Act, 2008 and engaged in the business of development and construction of group housing project. M/s. Aakarshan Estate Private Limited (opposite party-2) was a company, registered under the Companies Act, 1956 and owner of the project land. Opposite party-1 launched a group housing project in the name of “Oyster Grande” at Village Khedki Mazra, Sector-102/102-A, Gurgaon, in the year 2012 and made wide publicity of its amenities and facilities. Believing upon the representations of opposite party-1, the complainant booked an apartment and deposited booking amount of Rs.1200000/- on 18.10.2012. Opposite party-1, vide Allotment Letter dated 24.01.2013, allotted Apartment No.A-2104. As per request, opposite party-1 vide Provisional Allotment Letter dated 26.03.2014, allotted Apartment No.F-101 and executed Apartment Buyer’s Agreement dated 02.04.2014, in which total consideration of Rs.13208646/- was mentioned. The agreement provides payment plan as “construction link payment plan”. Article 5-A of the agreement provides that the developer will endeavour to complete construction within a period of 48 months from the date of execution of this agreement or from the date of commencement of the construction, whichever is later with a grace period of six months., The complainant availed a loan from State Bank of India for payment of instalments on 07.01.2013 and regularly paid instalments on time as per demand. The opposite party sent a demand letter dated 25.01.2018 for Rs.1831211/- of the instalment “on offer of possession” and other ancillary charges to the complainant. The complainant’s husband wrote an email dated 06.02.2018, to the opposite party seeking a site visit. Upon site visit, many shortcomings and deficiencies in the work, sanitary fitments, electrical fitments, instalment of split air conditioner in all the rooms, white wash work and flooring work was also found incomplete. The complainant pointed out the short comings vide email dated 11.02.2018 and demanded details regarding collection of the HVAT. The complainants’ husband wrote another email on 18.02.2018 to the opposite party seeking the redressal of the issues raised and swift action upon the same. He also sought for possession of the apartment at the earliest. Opposite party-1 sent a reminder through email dated 27.02.2018, making payments. The complainant’s husband consistently wrote emails on 26.05.2019, 06.06.2019, 14.06.2019 and 18.06.2019 to the opposite parties expressing his displeasure at their callous attitude regarding non completion of work at the apartment and delay in handing over possession of the same. Finally on 12.07.2019 the complainant wrote email to the opposite parties indicating his extreme frustration and disappointment at the callous and unprofessional attitude of the opposite parties in addressing the genuine concerns of the complainant and causing undue delay in giving possession of the apartment.  Accordingly, the complainant intimated the opposite parties that she no longer wished to take possession of the flat and sought for refund of the entire amount of sale consideration paid to them along with interest @18% per annum. Then this complainant was filed on 19.08.2019.     

4.      The opposite parties filed their written reply on 28.11.2019 and stated that the complainant is bound by the terms of the booking application and the agreement. Clause 39 of the Booking Application clearly stipulated that proposed period of 54 months, inclusive of 6 months grace period, for offering possession would start from either the date of execution of the agreement or from the date of commencement of construction whichever is later. Agreement was executed on 02.04.2012 and the period of 54 months on 01.10.2018. The construction was completed well within time and the opposite party applied for issue of “occupation certificate”, on 28.06.2017 which was issued on 20.12.2017. The opposite party offered possession to the complainant, vide letter dated 25.01.2018 and asked to deposit the instalment payable “on offer of possession”. Out of total 87 flats in tower-F, 48 allottees have taken possession. The complainant raised protests against finishing works, which used to be done by the builder after deposit of the last instalment. The opposite parties denied that the instalments were paid on time. The demand dated 06.09.2014 was delayed and the opposite parties issued reminder dated 15.10.2014, email dated 20.10.2014 and cancellation notice dated 28.11.2014. Thereafter instalment was paid on 07.01.2015. HVAT was statutory payment. The opposite parties further stated that this Commission has no jurisdiction to amend/modify agreements under the Consumer Protection Act, 1986. The complainant, looking into the financial viability of the project being developed by the opposite parties and its future monetary benefits voluntarily booked the apartment in question for better returns and appreciation in value. As market in real estate has gone down, the complainant now wants for refund of her money with interest@18% per annum.  The complainant was not a consumer rather investor. The complaint has no merit and liable to be dismissed.

5.      The complainant filed Rejoinder Reply and Affidavit of Evidence of Mrs. Shallu Sharma and documentary evidence. The opposite parties filed Affidavit of Evidence of Naveen Kumar Mittal and documentary evidence. Through IA/3912/2021, the complainant has filed Additional Evidence i.e. copy of the Reply of the opposite party filed before HRERA. Both the parties have filed their short synopsis.

6.      I have considered the arguments of the counsel for the parties and examined the record. As per Article 5-A of the agreement, the construction had be completed within a period of 48 months from the date of execution of this agreement or from the date of commencement of the construction, whichever is later with a grace period of six months. Agreement was executed on 02.04.2012 and the period of 54 months expired on 01.10.2018. The construction was completed well within time and the opposite party applied for issue of “occupation certificate”, on 28.06.2017 which was issued on 20.12.2017. The opposite party offered possession to the complainant, vide letter dated 25.01.2018 and asked to deposit the instalment payable “on offer of possession”. The complainant argued that there was no offer of possession. A perusal of letter dated 25.01.2018, shows that it was demand of the instalment payable “on offer of possession”. The complainant raised protests against finishing works, which used to be done by the builder after deposit of the last instalment. From the various emails written by the complainant, it is clear that prior to filing of this complaint, the complainant had no doubt in respect of the letter dated 25.01.2018, being a letter for offer of possession, otherwise there would have no objection in respect of finishing work. Even otherwise also there was no justification for the complainant to not depositing this instalment.  

7.      The complainant has stated that delay compensation has not been provided, but the possession was offered within the grace period of six months. Therefore, there was no question of delay compensation being given to the complainant. The complainant is claiming refund of money as such she is committing breach of contract and her earnest money is liable to be forfeited. As per clause-12 of Salient Terms and Condition, attached with it attached with Booking Form, 15% of the basic sale price + PLC + Car Parking Charges is “earnest money”. However, Supreme Court, in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Sirdar K.B. Ram Chandra Raj Urs Vs. Sarah C. Urs, (2015) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section-74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat remains with the developer as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs.EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s. IREO Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as “earnest money”.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund after forfeiting 10% of the basic sale price + preferential location charges + car parking charges within a period of two months from this judgment.