1.      Heard Mr. Praveen Alok, Advocate, for the complainants and Mr. Pravin Bahadur, Advocate, for the opposite party.

2.      Smt. K.K. Dhaliwal and J.S. Dhaliwal have filed above complaint for directing the opposite party to pay (i) Rs.9383656/-, with interest @18% per annum, from date of deposit till the date of refund; (ii) Rs.350000/-, as compensation for mental agony and harassment; (iii) Rs.65000/-, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstance of the case.

3.      The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its unit to the prospective buyers. The opposite party launched a group housing project in the name of “The Regal Garden” at DLF Garden City, Sector-90, Gurgaon, in the year 2011 and made wide publicity of its facilities and amenities. The complainants booked a flat and deposited booking amount on 04.05.2012. The opposite party, vide email dated 09.05.2012, provided “down payment plan” under which rebate was given. The complainants deposited total Rs.9383656/-, under “down payment plan” before the agreement. The opposite party allotted Apartment No. C-263, super area 1702 sq.ft, total sale price of Rs.10349250/ and executed Apartment Buyer’s Agreement dated 22.06.2012, in their favour. Clause-10(a) of the agreement provides 42 months period from the date of application for completion of the construction. Said period of 42 months expired in November, 2015. The opposite party, vide letter dated 04.02.2017, raised final demand of Rs.1183492.31 and asked to complete documentation for possession. The complainants gave a legal notice dated 21.03.2017, cancelling the agreement and asking for refund of their money with interest. The opposite party, through reply dated 25.04.2017, declined to refund the money. Then this complaint was filed on 16.05.2017, alleging deficiency in service.

4.      The opposite party filed its written reply on 15.11.2017 and contested the matter. The facts relating to the project, allotment of the flat to the complainants, execution of Apartment Buyer’s Agreement dated 22.06.2012, in their favour and payments made by them, have not been disputed. The opposite party stated that they throughout informed the complainants about the stages of construction. The construction was completed and the opposite party applied for issue of “occupation certificate” with some delay. “Occupation certificate” was issued on 07.10.2016, which was shared with the complainants through letter dated 10.11.2016. The opposite party, vide letter dated 04.02.2017, offered possession with final demand of Rs.1183492.31 and asked to complete documentations. Then the complainants vide notice dated 21.03.2017, cancelled the agreement and asked for refund of their money with interest. After obtaining “occupation certificate” and offer of possession, the complainants were under obligation to take possession, after completing formality and paying balance amount and not entitled to cancel the agreement. The opposite party replied the notice on 26.04.2017.They denied about deficiency in service. The complaint is liable to be dismissed.

5.      The complainants filed Rejoinder Reply and stated that due to delay in delivery of possession, their son and daughter-in-law had settled in Canada and purpose of booking of the flat was frustrated. The complainants filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of K.K. Dhaliwal and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Enakshi Kulshrestha and documents. Both the parties have filed their written arguments.

6.      I have considered the arguments of the parties and examined the record. Clause-10(a) of the agreement provides 42 months period from the date of application for completion of the construction. The period of 42 months expired in November, 2015. The opposite party has stated that the construction was completed and they had applied for issue of “occupation certificate” with some delay. “Occupation certificate was issued on 07.10.2016, which was shared with the complainants through letter dated 10.11.2016. The opposite party, vide letter dated 04.02.2017, offered possession. These facts have not been disputed. The complainants cancelled the agreement, only after offer of possession. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in civil construction work, time cannot be essence of the contract. Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 and this Commission in Parmod Kumar Madan Vs. DLF Ltd., 2021 SCC OnLine NCDRC 924, held that if after obtaining “occupation certificate” the builder offers possession, then the home buyer is under contractual obligation to take possession.

7.      There was no unreasonable delay in offer of possession. The complainants cancelled the agreement only after offer of possession. Therefore, they have committed breach of contract as such earnest money is liable to be forfeited under Clause-1.12 of the agreement. Under the agreement, earnest money is quantified to Rs.1034925/- i.e. 10% of total price.

                                                   ORDER                         

ln view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire money deposited by the complainants with interest @9% per annum, from the date of respective deposit till the date of refund, after forfeiting earnest money, within two months from the date of this judgment.