JUSTICE DEEPA SHARMA, PRESIDING MEMBER

        This complaint is filed under section 21 (a) (i) of the Consumer Protection Act, 1986  by the complainants in respect of a flat booked by them in a project promoted and executed by the opposite party on the grounds that there has been inordinate delay in completion of the same and seeking refund of the money along with damages.

2.     The brief facts of the case are that the complainants booked a flat on 21.10.2012 in the project ‘Oyster Grande’ being developed by the opposite party in Sector 102/ 102 A, Gurgaon, Haryana and were allotted flat no. F 1904, measuring 1409 sq ft (super area 1889 sq ft) vide allotment letter dated 09.01.2013. An Apartment Buyer’s Agreement was executed on 11.06.2013 between the complainants and the OP. A sum of Rs.1,28,77,558/- was paid by the complainants as on 13.03.2016 through instalments on various dates towards this flat. According to the complainants possession of the said flat had been promised within three years by the OP. However, since the same was not done, he has filed the present complaint on 01.02.2018.

3.     It is submitted by the complainants that they have been paying the amounts demanded from them to the OP on time. It is alleged that the OP had initially promised construction schedule of three years and subsequently it was extended to four years and the revised the date of handing over possession has not been adhered to by the opposite party which constitutes deficiency of service apart from an unfair trade practice on the part of the OP. The complainants are therefore before us with the following prayer:

1. Direct the OP to pay a sum of Rs.1,28,77,558/- received from the complainants, along with interest @ 24% per annum from the date of booking;
2. Rs.1.00 lakh to each of the complainants towards mental agony and torture caused by inordinate delay in the execution of the project;
3. Litigation expenses of Rs.73,000/- which amount the complainants were constrained to spend to seek relief in the matter;
4. Penal interest @ 24% for withholding the amount deposited till the date of payment; and
5. Any other relief as deemed fit and proper in the interest of justice.

4.     The opposite party has contested the claims of the complainants on the grounds that there was no commitment on its part of handing over the possession within three years. It has drawn attention to clause no.39 of the Apartment Buyer’s Agreement wherein it has been clearly mentioned that the possession would be offered within 48 months from the date of the Apartment Buyer’s Agreement with a further six months grace period as per clause 5. According to the opposite party, the period for handing over the possession of the flat needs to be reckoned from 11.06.2013 and that the period of 54 months including the grace period expired on 11.12.2017.

5.     According to the opposite party the occupation certificate for the subject flat was obtained from the concerned authorities on 20.12.2017 and the offer of possession was also made on the same date i.e., 25.01.2018. Therefore, there has been no delay in offering the possession to the complainant except approximately a month’s delay. It is contended that the complainants are seeking relief which is beyond the scope of agreement in the Apartment Buyer’s Agreement which binds both the parties.

6.     Parties have led their evidences and filed their written submissions. We have heard the learned counsels for both the parties and perused the records carefully.

7.     The contention of the complainant is that they have been misled to believe that the project would be executed within 36 months and were compelled to agree to the revised schedule as per the Apartment Buyer’s Agreement in view of the fact that they had already made certain payments to the OP by then. This, they allege constitutes unfair trade practice on the part of the opposite party as the provisions of Apartment Buyer’s Agreement were one sided and in favour of the OP. They have reckoned the period of 54 months from the date of booking of the apartment, i.e., 21.12.2012 when the first payment of Rs.8.00 lakh was paid by them to the OP. They have, therefore, sought relief as prayed on the grounds that the delay in handing over the possession constitutes deficiency in service and unfair trade practice by the opposite party.

8.     The OP has contended that as per clause 39 and clause 5 of the Apartment Buyer’s Agreement dated 11.06.2013, it has been clearly mentioned that the project would be completed within a period of 54 months (including 6 months grace period) from the date of singing of the agreement and as per this commitment, the possession was to be handed over on 11.12.2017. The OP had applied for occupancy certificate on 28.06.2017, i.e., six months prior to the committed date of possession and the OC was granted by the relevant authorities on 20.12.2017. The possession was offered to the complainants on 25.01.2018. Therefore, there is no deficiency in service or any misrepresentation on their part which constitutes unfair trade practice. The OP has relied on the judgment of the NCDRC in Vineet Kumar and Anr. Vs DLF Universal Ltd., ad Anr. (2019 SCC Online NCDRC 9) and the orders of the Hon’ble Supreme Court in SLP ( C) no. 11505 of 2019, 25793 of 2019, 12269 of 2019, 40772 of 2019 and 22614 of 2019 in which the appeals against this order were not entertained. It has also relied upon the judgment of the Hon’ble Supreme Court in IREO Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Ors., in Civil Appeal no. 5785 of 2019  [(2021) 3 SCC 241] decided on 11.01.2021.

9.     In the case of Vineet Kumar and Anr. Vs DLF Universal Ltd., and Anr., it has been held that:

“25.   ………………….The question which arises for consideration is whether the allottees were justified in refusing possession solely on account of such a delay, despite the fact that the basic facilities and amenities essentially required for the use and enjoyment of the allotted flats were available at the time the possession was offered. The project in which flats were booked by the complainant is a large project. Some delays in a large project of this nature are understandable and sometime inevitable. In fact, there is also a change in the judicial approach, in the cases where the possession is offered either before or during the pendency of the complaint. It is only where the delay is unreasonable or the circumstances of the allottee have materially changed in the meanwhile that the allottee may be justified in refusing to accept the possession and seek refund of the amount paid by him to the developer along with compensation etc. As noted early, the delay in 16 matters was not more than one year and there was no delay in one matter. Even in the remaining three matters, the delay, though more than one year, was not so unreasonable that it would justify the offer of possession, driven by the developer, even if a fair and just compensation is paid to the allottee for the delay in making the said offer. It has to be kept in mind that a bonafide purchaser books a flate for the purpose of having a shelter over his head. In the case of booking of a flat, the house is constructed for him by the developer. The refund to an allottee whether with or without compensation is also directed with a view to enable him to purchase an alternative flat, in lieu of the flat booked by him. Therefore, ordinarily, there will be no justification for not accepting the possession except in a case where the delay is very substantial and cannot at all be justified by the developer, or there is material change in the circumstances of the allottee, which would justify refund to him.

26.    As far as those 16 allottees to whom possession had been offered before institution of the complainants are concerned, they, in my opinion, ought to have accepted the possession reserving their right to see compensation from the developer for the delay in offering possession  of the allotted flats to them…………..”

10.   Except in one case in which the respondent/ complainant had stated that following the order of the State Commission, he had already purchased another house, it was held that there was no material change in the circumstances. It was therefore, further ordered as under:

“29.   (ii) …………..The developer DLF Universal Limited shall deliver the possession of the allotted flat to the concerned allottee within one month from today, along with compensation in the form of simple interest @ 8% per annum with effect from the committed date of possession till the date on which the possession was actually offered to the allottee.

(iii)    The compensation shall be paid on the entire amount, which the concerned allottee had paid to the developer on or before the date committed for the delivery of possession.

30.    The developer DLF Universal Limited shall pay a sum of Rs.25,000/- as the cost of litigation in each consumer complaint.”

11.   This order was not interfered with by the Hon’ble Supreme Court vide SLP Civil Appeals cited above and has therefore, attained finality.

12.   In the matter of IREO Grace Realtech Pvt. Ltd. Vs Abhishek Khanna and Ors., the Hon’ble Supreme Court has held that as the construction was completed by the developers and possession was offered to the allottees pursuant to the issuance of the occupancy certificate, the allottees were obligated to take possession of the apartments and the developer was obligated to pay the delay compensation for the period of delay which had occurred from the stipulated date of handing over of possession till the date when the offer of possession was actually made. .

13.   In the instant case, the complainant has sought refund in view of inordinate delay on part of OP in handing over possession of the flat. It is not in dispute that there has been a delay in the handing over of the flat. However, while the complainant contends that it is to be reckoned from the date of allotment (09.01.2013), the OP contends that it shall be with effect from the date of the Apartment Buyers Agreement (11.06.2013) which binds the complainants and the OP. We are inclined to agree with the contention of the OP since the Apartment Buyers Agreement is a document signed by the complainant, the date of possession committed be considered as 11.06.2013. No document has been provided by the complainant in support of his contention that the OP had assured completion of construction within 36 months of the booking or allotment of the flat. The OP has relied upon the Apartment Buyers Agreement dated 11.06.2013 which clearly states that the time frame for the construction of the Apartment as per the Apartment Buyer’s Agreement is 48 months plus grace period of six months i.e., 54 months. It is not disputed by the complainants that the OP had obtained the occupation certificate and made an offer of possession to him on 25.01.2018. It cannot, therefore, be said that the complainants were not aware of this schedule of construction although they have claimed that it was an unfair trade practice and that they were under compulsion to accept the date. The OP has provided evidence of having obtained the occupancy certificate dated 20.12.2017 and having made an offer of possession on 25.01.2018 along with his written submissions. The complainants have not disputed the same. Therefore, in view of the fact that an OC has been obtained and possession of the flat has been offered, as held by the Hon’ble Supreme Court in Abhishek Khanna and Ors (Supra), the complainant is obligated to take possession of the same. He is, however, entitled to compensation for the period of delay in the offer of this offer of possession.

14.   In view of the judgment of this Commission in Vineet Kumar and Anr vs DLF Universal Ltd., and Anr., and the law laid down by the Hon’ble Supreme Court in the case of IREO Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Others (Supra), the prayer of the complainants cannot be accepted for the reasons stated herein above. Accordingly, the present complaint is disposed of with the following directions:

1. The complainant shall pay the balance amount payable under the Builder Buyers Agreement to the opposite party within one month. The opposite party shall thereafter deliver the possession within a month and both parties shall do the needful as per the terms and conditions of the Builder Buyers Agreement relating to handing over possession and execution of sale deed.
2. The opposite party shall pay compensation to the complainants in the form of simple interest @ 8% per annum on the total deposited amount for the period from 11.12.2017 (the committed date of possession) till 25.01.2018 (date on which the possession was actually offered to the complainants); and
3. The opposite party shall pay Rs.50,000/- as cost of litigation to the complainant.