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

2.      Sheel Dev Yadav has filed above complaint, for directing the opposite parties to (i) refund Rs.6252803/- with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.1000000/-, as compensation for mental agony and harassment; (iii) pay Rs.150000/-, as litigation costs; and (v) any other relief which is deemed fit and proper in the facts of the case.

3.      The complainant stated that M/s. BPTP Limited and Countywide Promoters Private Limited (the opposite parties) 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 “Astaire Gardens” at village Palra, Sector-70-A, Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite parties, the complainant and Ms. Raj Bala booked a flat and deposited the booking amount of Rs.700000/- on 01.03.2011. The opposite parties issued Allotment Letter dated 11.07.2011 allotting, Unit No.C-69-SF, super area 1390 sq.ft., total cost of Rs.7705002.60 and executed Floor Buyer’s Agreement on 27.04.2012, in their favour. Later on Ms. Raj Bala surrendered her right in favour of the complainant, which was acknowledged by the opposite party through letter dated 03.08.2018. Annexure to the allotment letter contained payment plan as “construction link payment plan”. The complainant deposited total Rs.6188133/- by 17.12.2013 on which the opposite parties gave early payment discount of Rs.183253/-. The opposite parties offered possession, vide letter dated 08.11.2017 and raised demand of Rs.2198356.96 to be deposited till 08.12.2017 and in case payment is made on time then timely payment discount of Rs.48657.01 would be given. In the final demand super area has been increased from 1390 sq.ft to 1428 sq.ft. As the opposite parties unilaterally changed super area/layout plan, the complainant tried to meet the opposite parties for clarification but to no avail. The opposite parties issued payment reminder dated 12.04.2018, for Rs.2782415/- and another demand letter dated 18.06.2018 for Rs.64670/- towards VAT. The complainant sent emails dated 01.04.2018, 21.04.2018, 16.08.2018, 20.08.2018 and 21.08.2018, in respect of irregular charges and non-completion of other amenities but the opposite parties did not respond. Then this complaint was filed on 05.10.2018, alleging deficiency in service.        

4.      The opposite parties have filed its written reply on 17.12.2018, in which, booking of the flat, allotment of the flat, execution of agreement and the deposits made by the complainant, have not been disputed. The opposite parties stated that clause-5.1 of the agreement provides 36 months period from the date of sanction of the building plan or execution of Floor Buyer’s Agreement, whichever is later as ‘commitment period’ for delivery of possession, subject to force majeure and fulfilling the obligations of the buyer with a grace period of 180 days. The opposite parties applied for sanction of building plan on 18.06.2012, which was sanctioned on 03.05.2013. The period of 36 months was completed on 02.05.2016 and grace period was completed on 02.11.2016. The opposite parties completed construction, obtained ‘occupation certificate’ on 19.09.2017 and offered possession on 08.11.2017. In final statement of account, delay compensation of Rs.222400/- was credited as per agreement.  The complainant has delayed payment of some instalment, for which reminders dated 19.08.2011, 22.11.2011, 19.12.2011, 11.04.2017, 12.10.2017,22.11.2017,04.01.2018,12.04.2018 and 18.06.2018 were issued. The complainant made timely payment of some instalment for which Rs.183255/- was given as ‘timely payment discount’. 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. In the agreement, it has been mentioned that built-up area was tentative.In clause-2.13 and clause-3.4 of the agreement, the complainant has agreed to make payment of increased area. In the present case there is 2.73% increase in area. The complainant is an investor in real estate and not a consumer. As there is no appreciation in real estate at this time, the complainant wants for refund of his money with exaggerated interest. It has been denied that the construction was incomplete. Entire construction is complete and club related facilities are functional. 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 complainant filed Rejoinder Reply, Affidavit of Evidence of Sheel Dev Yadav and documentary evidence. The opposite parties filed Affidavit of Evidence, Affidavit of Admission/Denial of document of Inderjeet Singh and documentary evidence. The complainant has filed written synopsis. The opposite parties filed photographs of entire project on 22.12.2022, in CC/3616/2017.   

6.      The counsel for the complainant 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. The counsel for the opposite parties relied upon the judgment of a three member Bench of Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, in which, it has been held that if after obtaining ‘occupation certificate’ possession was offered then the buyer is obligated to take possession.    

7.      We have considered the arguments of the parties and examined the record. In CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, due date of possession was considered as 30 months from the date of agreement as per Clause-24 of the allotment letter, which is quoted below:-

“(24) The company shall make all efforts to handover possession of the Floor/Villa within 30 months from the date of execution of Floor/Villa Buyer’s Agreement, subject to certain limitations as may be provided in Buyer’s Agreement and timely compliance of the provisions of Buyer’s Agreement by the applicant. The applicant agrees and understands that the company shall be entitled to a grace period of 180 days over and above the period more particularly specified here-in-above, for finishing work and applying and obtaining necessary approvals in respect of the project.”  

8.      Clause-24 of the allotment letter was subject to limitation as may be provided in the Buyer’s Agreement. Clause-5.1 of Buyer’s Agreement provides 36 months period from the date of sanctioning of the building plan or execution of Floor Buyer’s Agreement, whichever is later as ‘commitment period’ for delivery of possession subject to force majeure and fulfilling the obligations of the buyer with a grace period of 180 days. Building plan was sanctioned on 03.05.2013. The period of 36 months was completed on 02.05.2016 and grace period was completed on 02.11.2016. The opposite parties obtained ‘occupation certificate’ on 19.09.2017 and offered possession on 08.11.2017. There was no unreasonable delay in offer of possession. We respectfully disagree with the judgment in CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, inasmuch the term “subject to limitation as may be provided in the Buyer’s Agreement” of the allotment letter was escaped from notice, in that judgment. The Buyer’s Agreement provides 36 months period from the date of sanctioning of the building plan. There is no reason to ignore the contract between the parties.  

9.      Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, held that if after obtaining ‘occupation certificate’ possession was offered then the buyer is contractually obligated to take possession. Till offer of possession, the complainant never asked for refund of his money. So far as objection to the increase in super area is concerned, there is 2.73% increase in area. In clause-2.13 and clause-3.4 of the agreement, the complainant has agreed to make payment of increased area.    

10.    In case, after offer of possession, the complainant deny to take possession, then his allotment is liable to be cancelled and earnest money is liable to be forfeited under clause-7 of the agreement. Under clause-2.6 of the agreement ‘earnest money’ is 25% of total sale consideration. 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 parties are directed refund entire amount deposited by the complainant with interest @9% per annum from date of respective deposit till the date of refund, after forfeiting of 10% of basic sale consideration, 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.