JUSTICE V.K. JAIN, (ORAL)

The complainant booked a residential flat with the opposite party, in a project which the opposite party was to develop in Village Nawada Fatehpur of Gurgaon,  forming part of Sector 86. Pursuant to the said allotment, a Flat Buyers Agreement dated 11.10.2012 was executed between the parties. Clause 31 of the agreement pertains to the delivery of the possession and reads as under:-

“The Developer shall offer possession of the Unit any time, within a period of 42 months from the date of execution of Agreement or within 42 months from the date of obtaining all the required sanctions and approval necessary for commencement of construction, whichever is later subject to timely payment of all the dues by Buyer and subject to force-majeure circumstances as described in clause 32. Further, there shall be a grace period of 6 months allowed to the Developer over and above the period of 42 months as above in offering the possession of the Unit.”

2.      The case of the complainant is that the possession should have been delivered to him by 10.4.2016, when 42 months from the date of the Flat Buyers Agreement expired. His grievance is that the possession was not offered to him despite he having already paid Rs.7280205.51 to the opposite party. The complainant is therefore before this Commission seeking refund of the amount paid by him to the opposite party along with compensation etc.

3.      The complaint has been resisted by the opposite party which has interalia stated in its written version that since they received the building plans approval and necessary sanction on 3.9.2013, the period of 42 months has to be calculated from that date only and having been filed in the year 2016, the complaint is premature.

4.      I am in agreement with the learned counsel for the opposite party  that the requisite period of 12 months is required to be calculated from the date on which the building plans were approved. The said date according to the opposite party being 3.9.2013, the requisite period of 42 months  expired on 3.3.2017. The grace period of six months consequently expired on 3.9.2017. The possession, therefore, ought to have been delivered at best by 3.9.2017. However, it will serve no purpose from returning the complaint as premature at this stage, since more than one year has already expired even from 3.9.2017, if the period of 48 months computed from 3.9.2013 expired. The next contention of the learned counsel for the opposite party is that they have applied for the requisite Occupancy certificate on 26.4.2017. However, no such plea has been taken in the written version which was filed by the opposite party in July 2017. Be that as it may, even if it is accepted that the opposite party had applied for the grant of the requisite Occupancy Certificate on 26.4.2017, as is stated by its counsel, the fact remains that admittedly the requisite Occupancy certificate has not been granted till date. Had the construction been complete in all respects and the construction been confirming to the applicable building bye-laws in all respects, the Occupancy Certificate would have been issued to it within the prescribed period, there being a deemed provision for the grant of the Occupancy certificate unless it is refused or an objection is raised within specified days from the date on which the Occupancy certificate is applied for. The learned counsel for the complainant submits that the opposite party applied for the Occupancy certificate without  completing the work and that is the reason the said Occupancy Certificate has not been issued till date. No evidence has been led by the opposite party to prove that there was no deficiency/deviation in the work, at  the time they applied for the requisite Occupancy Certificate and there was no violation of any not building bye-laws on their part. As noted earlier, the opposite party did not even refer to its application for issuance of the Occupancy Certificate, in its written version which was filed much after the date on which it allegedly applied for such Occupancy Certificate.

Had that been, the complainant would have got an opportunity to plead and prove that the Occupancy Certificate has not been issued because of the deviations/deficiencies in the construction.

5.      The opposite party  has not placed on record the correspondence exchanged between it and the concerned authority with respect for the issuance of the Occupancy Certificate which was allegedly applied by it on 26.4.2017.

          Had that correspondence been placed on record, it would have been possible for this Commission to know as to what precisely were the reason why the Occupancy Certificate is not being issued by the concerned authority despite the same having been applied for way back on 26.4.2017.

6.      In these circumstances, when about 7 years from the date on which the complainant applied for the allotment of a flat have already expired and it is not known when the Occupancy Certificate  will actually be issued to the opposite party, the complainant cannot be made to wait for an indefinite time and he is entitled to seek refund of the amount paid by him to the opposite party along with  the requisite compensation etc.

7.      No evidence has been led by the complainant to prove the actual loss sustained by him on account of the opposite party having not delivered possession of the allotted flat to him. However, considering the rate of interest prevalent at the relevant time on the bank deposits, I am of the view that the complainant should be paid an all-inclusive  compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date of refund.

8.      The learned counsel for the opposite party relies upon clause 5 of the Buyers Agreement and submits that the interest should be awarded @ 6% p.a. I, however, find myself unable to accept the contention. Clause 5 on which reliance is placed by the learned counsel for the opposite party, reads as under:-

“That in case the developer increases number of floors as aforesaid the Buyer shall have no objection to the same. The Buyer hereby undertakes to tender all possible cooperation for such addition/alteration in the structure. In case of increase in the floor thereby resulting increase in saleable area, the developer shall review the relevant allied charges and if possible shall pass on the proportionate benefits if any to the Buyer. However, it is made clear that such change in the saleable area shall not make the Buyer entitled for claiming reduction in the basic sale price of the unit. If in case the Buyer is not agreeable to such variation and deviation as mentioned in the clause 3 and 4 he shall have the option to seek refund from the company with 6% p.a. simple interest.”

          It is evident from a bare perusal of this clause that it would apply only where the developer increases the number of floors and the consequent change in saleable area is not acceptable to the flat buyer.

9.      The learned counsel for the opposite party also relies upon clause 25 of the Buyers Agreement, which reads as under:-

“If payment of installation/other dues are not received within the stipulated period given in the opted payment plan and/or in the event of breach of any of the terms and conditions of the application and Agreement by the Buyer, the Allotment can be cancelled at the sole discretion of the Developer and the Developer shall be entitled to sell the said Unit at such price and on such terms and conditions to such other person or party (new Buyer) as the Developer may in its absolute discretion deem fit. The Developer shall refund the Buyer the amount paid by the Buyer towards the basic sale price in pursuance of this Agreement after receiving back the original documents from the Buyer and after compliance of necessary formalities by the Buyer but after deducting there from 20% of the basic sale price of the unit which constituted the earnest money. In case the unit is cancelled as above, the balance amount, if any, shall be refunded by Developer to the Buyer within 30 days after receiving original documents from the Buyer. Only if Developer delays in refunding the balance amount, if any, as above, the developer shall be liable to pay interest @ 5% PA on refund amount for the period starting from 30 days after receiving original documents from the Buyer till actual date of refund.

          The above-referred clause is wholly inapplicable to a situation where the flat buyer is seeking compensation on account of the builder having failed to deliver possession of the allotted flat to him.

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

1. The opposite partyshall refund the entire principal amount of Rs.7280205.51 to the complainant along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.

2. The opposite partyshall also pay a sum of Rs.25,000/- as the cost of litigation in each complaint.

3. The payment in term of this order shall be made within three months from today.