1.      Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Pragyan Pradip Sharma, Advocate, for the opposite parties.

2.      Ambily Menon and Mohan Veluthedathu Balan have filed above complaint, for directing the opposite parties to (i) refund Rs.3468000/- with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Pre-EMI to HDFC Bank on the loan of the complainant as per subvention scheme; (iii) pay Rs.500000/-, as compensation for mental agony and harassment; (iv) pay Rs.100000/-, as litigation costs; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that M/s. BPTP Limited and Countywide Promoters Private Limited (opposite parties-1 and 2) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite parties launched a group housing project, in the name of “Pedestal” at village Palra, Sector-70 & 70-A, Gurgaon, in the year, 2013 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite parties, the complainants booked a flat and deposited booking amount of Rs.900000/- on 24.07.2013. The opposite parties issued Allotment Letter dated 07.02.2014, allotting Unit No.B-107-SF, built-up area 1070 sq.ft., total cost of Rs.9432988.91/- and executed Floor Buyer’s Agreement on 17.12.2013, in favour of the complainants. Annexure to the allotment letter contained payment plan as “construction link payment plan”. Clause-5.1 (read with clauses-1.4 and 1.15) of the agreement provides 36 months period from the date of execution of the agreement with grace period of 180 days for delivery of possession. In order to make timely payment of the instalments, the complainants took a loan of Rs.6772116/- from HDFC Bank, for which, a Tripartite Agreement was executed on 21.04.2014. Under subvention scheme, the opposite parties undertook to pay Pre-EMI till the date of offer of possession. As per demand, the complainants deposited Rs.510500/- on 18.04.2014, Rs.1810436/- on 15.05.2014, Rs.237897/- on 03.12.2014 and Rs.9167/- on 03.12.2016 (total Rs.3468000/-). The opposite parties undertook to pay Pre-EMI on the loan till offer of possession but they were not paying Pre-EMI and HDFC Bank raised demand of Rs.18248/- on 10.05.2016 as the interest on Pre-EMI and reminder for two months on 27.06.2016. The  complainants wrote for updating construction status. Then the opposite parties gave an email dated 19.09.2017 that possession would likely to be delivered till April, 2018. The complainants downloaded photographs of the site from the website of the opposite parties and found that information given through email was incorrect inasmuch as construction of block-B was at preliminary stage. As per agreement, due date of possession expired in June, 2017. The complainants were living in a rented accommodation and HDFC Bank has also started EMI of the loan, as such, the complainants are facing financial problem, due to unreasonable delay in possession. Then this complaint was filed on 29.09.2017, alleging deficiency in service.        

4.      The opposite parties have filed its written reply on 01.01.2018, in which, booking of the floor, allotment of the floor, execution of agreement and the deposits made by the complainants, have not been disputed. The opposite parties stated that the complainants booked the floor through a real estate broker, namely Jones Long LaSalle Residential Pvt. Ltd. Haryana Urban Development Authority has sanctioned plan, for development of Sector-70 & 70-A, Gurgaon. Director, Town and Country Planning, Haryana granted Licence No.15 of 2011 dated 07.03.2011, for development of the land of 102 acres to the opposite parties, falling in these sectors. But Haryana Urban Development Authority has not acquired the land of sector roads, master sewer line, master storm water drains, master water lines and master electricity line nor developed above external infrastructures. The opposite parties have developed the sector road at their own costs in 2016. In the absence of approach roads and other facilities for construction, the project was delayed. The opposite parties are now proceeding with the construction with full spring, which is likely to be completed in near future. The opposite parties have borne Pre-EMI interest of Rs.412098/- till 31.03.2016 and assured the complainants through emails dated 04.11.2015, 12.03.2016, 19.05.2016 for bearing Pre-EMI interest till offer of possession although under the scheme, liability of the opposite parties was up to 31.03.2016. The complainants delayed payment of instalment payable on 02.04.2014, as the cheque issued by the complainants was dishonoured and after reminder this instalment was paid on 02.05.2014. Demand payable up to 18.03.2014 was paid on 15.05.2014 by HDFC Bank. After issue of reminders dated 17.07.2014, 18.08.2014, 17.09.2014, 17.10.2014 and 20.11.2014, payment was made on 03.12.2014 of next instalment and VAT was paid on 03.12.2016. Next demand for “on casting first floor & second floor roof slab” was raised on 01.04.2017 but the complainants did not pay it inspite of reminders. The opposite parties always updated the buyers about the construction status along with demand letters. In the allotment letter, the Terms and Conditions have been given as such it cannot be said that agreement was one sided. Floor Buyer’s Agreement was sent to the complainants through letter dated 25.03.2014 and it was signed by them on 21.04.2014. The period of 36 months was completed on 20.04.2017 and grace period was completed on 20.10.2017. The complaint was filed on 29.09.2017. The agreement provides for arbitration in case of any dispute and the complaint is not maintainable. The complaint has no merit and liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavits of Evidence, Affidavits of Admission/Denial of document of Ambily Menon and Mohan Veluthedathu Balan and documentary evidence. The opposite parties filed Affidavit of Evidence of Inderjeet Singh and documentary evidence. The complainants have filed their written synopsis.   

6.      The counsel for the complainants relied upon the judgment of this Commission, passed in CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, dated 18.06.2020, arising out of same project, in which, direction for refund of entire amount with interest @10% per annum was issued due to inordinate delay in offer of possession. This judgment was affirmed with slight modification of interest in Civil Appeal No.1001-1002 of 2021, by judgment of Supreme Court dated 12.04.2021. He further relied upon judgment of Supreme Court in Ireo Private Limited Vs. Aloke Anand, 2022 SCC OnLine SC 106.

7.      We have considered the arguments of the parties and examined the record. CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, was in respect of other project and has no application in the present case. Floor Buyer’s Agreement was sent to the complainants through letter dated 25.03.2014 and it was signed by them on 21.04.2014. Clause-5.1 (read with clauses-1.4 and 1.15) of the agreement provides 36 months period from the date of execution of Floor Buyer’s Agreement, for delivery of possession subject to force majeure and fulfilling the obligations of the buyer with a grace period of 180 days. The period of 36 months was completed on 20.04.2017 and grace period was completed on 20.10.2017.

8.      However, it is admitted to the opposite parties that as external infrastructure was not developed by Haryana Urban Development Authority, as such, the project was delayed on the spot.  The opposite parties raised demand of instalment “on casting first floor & second floor slab” on 01.07.2017 which shows that the construction was unreasonably delayed although the construction would have been completed upto 20.04.2017.  Till today, neither the opposite parties completed the construction nor obtained occupancy certificate.  It is well settled that the home buyers cannot be made to wait for possession for unlimited period.    

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite parties are directed to refund entire amount deposited by the complainants with interest @9% per annum from date of respective deposit till the date of refund, after adjusting Pre-EMI interest paid by them, within a period of two months from the date of this judgement. It shall be open to the opposite parties to satisfy the loan of the bank and refund balance amount to the complainants.