1.      Heard Ms. Sangeeta Sondhi, Advocate, for the complainant and Mr. Pravin Bahdaur, Advocate, for the opposite parties.

2.      Sunil Kumar has filed above complaint, for directing the opposite parties to (i) refund Rs.18593465/- with interest @18% per annum, from the date of deposit till the date of refund; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.one lac, 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. The 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 05.01.2013, allotted Apartment No.B-1702, super area 2598 sq.ft and executed Apartment Buyer’s Agreement dated 22.01.2016, in which total consideration of Rs.18643431/- was mentioned. Allotment Letter provides payment plan as “construction link payment plan”. Article 5-A of Allotment Letter 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. Opposite party-1 realized instalment of “on start of excavation” on 03.10.2013 and by the time of execution of Apartment Buyer’s Agreement, the complainant had deposited total Rs.12620194/-. In order to make timely payment of the instalment, the complainant took loan of Rs.4575000/- from Housing Development Finance Corporation Limited, for which a Tripartite Agreement was executed on 14.09.2016. As per demand, the complainant paid total Rs.18593465/- till February, 2018. High tension electricity line was passing right above the apartment allotted to the complainant, as such the construction was proceeded with very slow pace. 48 months period expired in November, 2017. Opposite party-1 issued demand letter dated 25.01.2018, for Rs.2370156/- of the instalment “on offer of possession”, payable till 12.02.2018. The complainant paid Rs.15/- lacs on 12.02.2018 and through emails dated 12.02.2018 and 16.02.2018, raised objection in respect of the excessive demands in the heads of electrification, electric meter, water connection, fire alarm, CCTV and HVAT, for not providing delay compensation and also in respect high tension electricity line, passing right above the apartment. Opposite party-1, through email dated 16.02.2018, replied that construction was completed till May, 2017 i.e. well within time. Building plan was sanctioned with provision of HT wire and mandatory clear distance was maintained between the HT wire and the apartment and the charges were as per Article 3(B) of the Agreement. Then this complaint was filed on 08.03.2018, alleging HT electricity line was not disclosed at the booking.             

4.      The opposite parties filed their written reply on 28.03.2019 and stated that they obtained Licence No.29 of 2012 and Licence No.30 of 2012 dated 10.04.2012, for development of group housing project. Thereafter, the opposite party launched group housing project “Oyster Grande” of which, building plan was approved on 10.10.2012. The complainant booked apartment on 18.10.2012. Provisional allotment letter was issued to the complainant on 05.01.2013. High tension electricity line was passing by the side of the project land. Building plan was sanctioned with provision of HT wire and mandatory clear distance was maintained between the HT wire and the tower, in which, the complainant was allotted flat. On the first page of the Booking Form and Clause-4 of Salient Terms and Condition, attached with it, clearly mentioned that the project site was shown to the complainant. In email dated 12.02.2018, the complainant has admitted that High Tension Electricity Line was passing by the side of the tower at the time of booking. Knowing all the facts, the complainant booked the apartment and deposited instalment. At the time of offering possession, this issue cannot be raised. The construction of the Tower was completed and the opposite parties applied for issue of “occupation certificate” on 28.06.2017. “Occupation certificate” was issued on 20.12.2017. The opposite parties, letter dated 25.01.2018, offered possession to the complainant, which was well within grace period as such no delay compensation was payable. Demand letter dated 25.01.2018 was according to Article 3(B) of the Agreement and not excessive. It has been denied that the complainant has made timely payments. A copy of the agreement was sent to the complainant vide letter dated 20.04.2013 with request to sign the agreement within 30 days, but the complainant himself delayed signing of the agreement, as such, the delay in execution of the agreement was committed by the complainant himself.  In any case all the terms and conditions have been disclosed in the booking application form and no prejudice has been caused to the complainant. Preliminary objection that the complainant is not a consumer rather investor and the agreement between the parties is binding and this Commission has no jurisdiction to alter the agreement have also been raised.

5.      The complainant filed rejoinder reply and affidavit of evidence of Sunil Kumar and documentary evidence. The opposite party filed affidavit of evidence of Naveen Mittal and documentary evidence.  Both the parties have filed their short synopsis of arguments.

6.      I have considered the arguments of the counsel for the parties and examined the record.  The opposite party has filed the lay out plan of the project along with affidavit of evidence, showing that high tension line was existed by the side of the road and after high tension line the project land was situated. Relying upon the clause as mentioned at first page of the booking application form as well as clause 4 of the salient terms and conditions attached with the booking application form, the opposite party contended that this fact was disclosed to the complainant before the booking of the apartment. A perusal of the e-mail of the complainant dated 12.02.2018 (page 144 of the complaint) shows that the complainant was knowing about high tension electricity overhead wires running by the site of the project land from the time of booking. The complainant has taken plea that at this time of booking, the opposite party, had committed that high tension electricity wire would be reallocated, but no evidence in this respect has been filed. Thus, knowing well that high tension line was running by the side of the project land, the complainant booked flat and deposited the instalment throughout. The objection in this respect cannot be raised at the time of offer of possession on 25.01.2018.

7.      So far as the objections in respect of various demands are concerned, all demands are as per Article 3(b) of the agreement.  This cannot be a ground for going out of the contract.

8.      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 he is committing breach of contract and his 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.