In brief, the admitted facts of case are that the opposite party had launched a residential project Regal Gardens-DLF Garden City at Sector 90, Gurgaon and advertised it.  The complainant had booked a residential unit vide its application form dated 03.03.2012 and also paid booking amount of Rs.7,60,000/-. He had applied for unit measuring 1726 sq. ft. for total consideration of Rs.92,63,010/-.  He was allotted unit No. RGD054.  A Builder-Buyer Agreement was executed between the parties on 18.07.2012.  Consequent thereupon, the complainant made the payment and had paid total sum of Rs.85,23,623/- upto 2014.

2.      It was contended by the complainant that cutoff date of the completion of the project was after September, 2015 but no offer of possession was made within stipulated period. He was offered possession in the year 2017 after a delay of more than 2 years and the area of his apartment was also changed from 1728 sq. ft to 1760 sq. ft and he had been charged for the said increased in the area.  A demand of incidental increase of the area was raised along with proportionate charges payable for the bulk supply of Rs.1,32,088/- and other costs of Rs.5,35,022/- and escalation charges of Rs.1,55,021/-. It was contended that these charges were not due in any manner and that area of the apartment was not increased and the electricity charges so claimed were not chargeable.  The additional charges remained unexplained and the escalation charges could not have been claimed from the complainants.  It was further contended that since it was the opposite party which had delayed the project, it cannot claim escalation charges under any circumstance. These charges have been raised along with possession letter dated 04.02.2017 and his request to provide explanation for the said charges remained unanswered despite the continuous request of the complainant. It was further submitted that possession letter had been issued despite the fact that the apartment was not ready and fit for possession. He was also not given timely  payment rebate despite the fact that he has always made the payment as per the demands.  On these contentions, it is submitted that opposite party had adopted unfair trade practices and is deficient in service and negligent and it is prayed that opposite party be directed to refund the entire deposited amount of Rs.85,23,623/- along with interest @ 18% p.a. from the date of respective payment till date of realization and also pay compensation of Rs.10,00,000/- towards harassment, mental agony, fraud etc. and sum of Rs.2,00,000/- towards litigation cost.

3.      The claim is contested by the opposite party.  All the contentions raised in the complaint have been denied.  It is submitted that opposite party had applied for the occupation certificate for all 540 apartments developed by it and had offered possession to 154 allottees and all the basic amenities in terms of the Apartment Buyer Agreement have been provided.  It was further contended that all the terms and conditions have been duly disclosed in the booking application as well as in the agreement and the relevant clauses 17 in the application form and 1.6 and clause 10 in the Builder Buyer Agreement clearly states that the building plans of the apartment / complex and lay out plan were tentative and were liable to change on the sole discretion of the company and that the plans were yet to be sanctioned by the competent authorities.  The period of handing over of the possession was also tentative and was subject to force majeure as was clearly defined in the booking application as well as in the agreement and the allottee had been made entitled for the compensation for the delay.  It is further contended that possession was to be offered only on obtaining the occupation certificate and the occupation certificate was received on 07.10.2016 from the competent authority and all the basic amenities such as roads, sewerage, drinking water, electricity, street lights, drainage etc have been provided in terms of the agreement.  Copy of the occupation certificate was also annexed along with the reply of the opposite party.  It was submitted that delay had occurred due to unavoidable and unexplained circumstances which were completely beyond the control of the opposite party.  It was submitted that as per clause 15 of the agreement, it is stipulated that in case of delay in handing over the possession beyond 42 months from the date   of application and subject to other terms of the agreement, the allottee would be compensated @ Rs.15/- per sq. ft. of the super area.  It was further submitted that allottee vide clause 14 of the agreement had an option to avail refund along with interest by giving notice to the opposite party within 90 days  after the expiry of 42 months from the date of application but the complainant had never exercised that option by moving an application to the opposite party.  It is contended that it was only when the offer of possession vide letter dated 04.02.2017 was made along with remitting outstanding dues and to furnish certain documents in order to facilitate the execution of the conveyance deed that the present complaint had been filed by the complainant.  It was further contended that along with letter of offer, final statement of account was also enclosed. Also vide letter dated 13.02.2017, a clarification letter was sent to the complainant informing him that maintenance security is demanded at Rs.2,64,000/- @ Rs.125 per sq. ft. while in the letter sent along with occupation certificate on 04.02.2017 by mistake, amount was mentioned @ Rs.150/- per sq. ft.  Subsequently, a clarification letter dated 16.03.2017 was also sent to the complainant.  However, the complainant instead of making payments and completing documentation filed the complaint.  It is submitted that there is no deficiency on the part of the opposite party and, therefore, complaint is liable to be dismissed.

4.      Complainant had filed its rejoinder in which he has reiterated his averments in the complaint and has denied the contentions in the written version except that of admitted facts. 

5.      The parties led their evidences by way of affidavit. Written submissions have also been filed by the parties. I have heard the learned counsels at length and have also perused the file.

6.      The admitted facts of the case are that complainant had booked a flat in the project called Regal Garden-DLF Garden City, Sector -90, Gurgaon being developed by the opposite party vide application dated 03.03.2012.  A Unit No.RGD-054 in Tower-D on 05^th Floor was allotted to the complainant.  A Builder Buyer Agreement was executed on 03.03.2012. Total consideration of the said unit was Rs.92,63,010/-.  Out of the said money, complainant had paid total sum of Rs.85,23,623/-  on various dates.  As per clause 11a of the Builder Buyer Agreement, the construction was to be completed within 42 months i.e. by 03.09.2015. The opposite party offered the possession of the subject property vide offer of possession letter dated 04.02.2017 after obtaining the occupancy certificate.  It had obtained Occupancy Certificate on 07.10.2016. Along with the offer of possession, final statement of accounts were also sent but since there were some discrepancies in the statement of account, it was later on clarified and amended.  Complainant, however, instead of taking possession of the subject flat filed the complaint on 06.02.2018 i.e. almost a year after offer of possession had been received by him.  He had alleged deficiency on the part of the opposite party due to delay in offering the possession. The complainant had sought refund of the entire deposited amount along with interest @ 18% p.a. and Rs.10.00 lacs towards harassment and mental agony and Rs.2.00 lacs towards litigation expenses and filed written submissions wherein it has relied on clause 11a of the Builder Buyer Agreement and has submitted that since the opposite party had failed to deliver the possession within the stipulated period, he is entitled to the refund and  has relied on the findings of this Commission in Surendra Arora Vs. Ireo Grace Realtech Pvt. Ltd. CC no. 190 of 2017 decided vide order dated 18.09.2018 and had submitted that this Commission has held that any such clause is wholly unfair which is one sided and ordered the refund.  It has also relied on the findings of this Commission in Geetu Gidwani Verma & Anr.Vs. Pioneer Urban Land & Infrastructure Ltd. CC No. 238 of 2017 decided on 23.10.2018 and has submitted that any clause which is one sided is wholly unfair and, therefore, order of refund along with compensation had been made by this Commission and that the said order had  been upheld by the Hon’ble Supreme Court in the case of Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma and Anr. Civil Appeal No. 1677 of 2019 decided on 02.04.2019.  It has also relied in the case of Arun Gupta and Anr. Vs. Pioneer Urban Land & Infrastructure Pvt. Ltd. CC no. 1159 of 2017 decided on 31.01.2021 wherein it has again been held that one sided clauses are wholly unfair. It has been submitted and argued that in view of the settled proposition of law, the order of refund along with interest and compensation and litigation cost be passed.

7.      It is submitted on behalf of the opposite party that present complaint had been filed after the offer of possession has  been made and it has been held by this Commission in Vineet Kumar & Ors. Vs. DLF Universal Ltd. & Ors. 2019 SCC Online NCDRC 9 that where the complaint has been filed after offer of possession has been made and delay is not an unreasonable delay, the complainant is not entitled for the refund of the deposited amount and complainant is obligated to take the possession of the allotted property.  It is submitted that vide this case, this Commission had decided the Appeal of 18 allottees who had initially filed their complaint before the State Commission vide separate complaints and State Commission had directed the refund in every case and this Commission in its order held that delay upto 19 months cannot be considered unreasonable. It is submitted that few of the allottees in the said case had challenged the order of this Commission before the Hon’ble Supreme Court and Hon’ble Supreme Court has dismissed their Appeal in limine.  It is further submitted that Hon’ble Supreme  Court in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors. 2021 SCC Online SC 14 has also categorised the allottees in two categories by making two charts A & B.  Chart-A was of those allottees who had filed the complaint after the offer of possession had been  made to them along with occupation certificate and the Hon’ble Supreme Court has held that such allottees are obligated to take the possession and are entitled only for the delayed compensation from the due date till the date of offer of possession.  It is submitted that in view of this settled proposition of law, order of refund cannot be made and complaint is liable to be dismissed.

8.      I  have given my thoughtful consideration to the rival contentions of the parties.  The only issue before me is whether the complainant is entitled for the refund of its deposited amount in the circumstance when he  has come before this Commission after  one year of receiving the offer of possession along with occupation certificate.  There has been delay of about 16 months in offering the possession. This issue is res integra in number of pronouncements of this Commission and confirmed by the Hon’ble Supreme Court.  This Commission in the case of Vineet Kumar & Ors ( supra ) has dealt with this issue and has held as under:

“25.    It is true that except in one case, there was delay on the part of the developer in offering possession of the allotted flats to the concerned allottees. The delay was one year or less in 16 matters whereas it was more than one year in a few matters. Out of 20 cases subject matter of these appeals, the possession in 17 matters had been offered before the consumer complaints were instituted by the concerned allottees. As noted earlier in one case, i.e., the complaint filed by Vineet Kumar, there was no delay. 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 basis facilities and amenities  essentially required for the use and enjoyment of the allottees 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 sometimes 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 alongwith compensation etc. As noted earlier, 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 given 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 flat  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 complaints are concerned, they, in my opinion, ought to have accepted the possession reserving their right to seek compensation from the developer for the delay in offering possession of the allotted flats to them. Even the allottees in whose case the possession was offered after institution of the complaint, ought to have accepted the possession and claimed only the compensation.  In one case, the complaint instituted by Ankur Mujral, the possession had not been offered even by 30.8.2016 when the State Commission directed refund of the amount paid by the allottee to the developer along with compensation etc. though the same ought to have been offered by 16.2.2015.  This presumably happened because the complaint was disposed of within about two months of its institution.  The developer claims to have obtained the requisite occupancy certificate for this flat as well.”

9.      It is not in dispute that this order was confirmed by the Hon’ble Supreme Court since the Hon’ble Supreme Court had rejected the appeals filed by few of the complainants of that case.  Also in the case of Abhishek Khanna ( supra), the Hon’ble Supreme Court has clearly held that allottees to whom an offer of possession had been made alongwith occupation certificate are obligated to take possession of the said property. The Hon’ble Supreme Court has clearly held in the case of Abhishek Khanna ( supra) that buyer are not entitled to terminate the agreement and seek refund of the deposited amount with delayed compensation where the offer of possession has been made and occupation certificate has been issued and they are obligated to take the possession of the apartment.  Al-though it is argued by the counsel for the complainant that one sided clauses are unfair and, therefore, complainant is entitled for the refund but nowhere in its written submissions or in its oral arguments, counsel  has pointed out to the clause which it found unfair.  Also under clause 14 of the agreement, the complainant had the option to avail refund along with interest by giving notice to the opposite party within 90 days after the expiry of 42 months but complainant has not exercised that right under the agreement and rather had filed the complaint after the offer of possession along with occupation certificate has been made to him.   It is, therefore, clear that the complainant is obligated to take possession and in the facts and circumstances of this case, is not entitled for the refund.  Since there is a delay in offer of possession, the complainant is entitled to the delayed compensation from the stipulated date of possession till the date of offer of possession ( reliance of Abhishek Khanna’a case supra)

10.    For the foregoing reasons, I issue the following directions:

i.        The opposite party shall deliver the possession of the allotted flat to the complainant within two months from the date the complainant makes the payment of the balance amount along with other miscellaneous charges in terms of the agreement, which shall be done by him within a month from today.

ii.       The Opposite Party shall also pay the compensation in the form of  Simple Interest @ 9% p.a. on the deposited  amount w.e.f. due date of possession till the date of offer of possession.

iii.      The opposite party shall pay a sum of Rs.50,000/- as cost of litigation to the complainant.