1.      Heard Mr. Gagan Kumar, Advocate, for the complainants, Mr. Kapil Madan, Advocate, for opposite party-1 and Mr. Rajat Tanwar, Advocate, for opposite party-2.

2.      Pumit Kumar Chellaramani and Mohit Kumar Chellaramani have filed above complaint, for directing the opposite parties to

(i) refund Rs.8188518.38 with interest @15% per annum from the date of respective deposit till the date of payment; (ii) pay Rs.480000/- as compensation towards annual rent paid by the complainants owing to delay in delivery of possession; (iii) to pay Rs.200000/- as compensation for mental agony and harassment; (iv) pay Rs.125000/- as costs of the litigation; or in alternative

(v) obtain approval in terms of Policy dated 18.02.2015 and/or dated 03.01.2017, from DTCP, Haryana; (vi) pay interest @15% per annum  on Rs.8188518.38, from 03.01.2017 till the date of obtaining approval from DTCP, Haryana; (vii) pay Rs.350000/- with interest @15% per annum, illegally charged for car parking space; (viii) to pay Rs.200000/- as compensation for mental agony and harassment; (ix) pay Rs.125000/-, as litigation costs; and (x) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that M/s. Godrej Premium Builders Private Limited and M/s. Magic Info Solutions Pvt. Ltd. (the opposite parties) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. M/s. Magic Info Solutions Pvt. Ltd. and some individuals were owners of land situated at Manesar Urban Complex, Sector 104, Gurgaon. The owners of the land entered into a Collaboration Agreement dated 17.02.2011 and 05.08.2011 with M/s. Godrej Properties Limited for development and construction of group housing project over their land and selling its units to the prospective buyers. The owners of the land obtained Licence No.102 of 2011 dated 07.12.2011 from Director, Town and Country Planning, Haryana for development of group housing project. The opposite parties launched the project, in the name of “Godrej Summit” on above land, in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite parties, the complainants booked a 2BHK flat on 11.09.2012 and deposited booking amount of Rs.10/- lacs. The opposite parties allotted Unit No.102, super built-up area 1269 sq.ft., Tower-F and one covered car parking space, for total consideration of Rs.7880060/- to the complainants on 04.02.2013 and executed Apartment Buyer’s Agreement on 26.04.2013 in their favour. The complainants opted for “construction link payment plan”. The complainants diligently followed payment plan and as per demand, deposited more than total sale price as mentioned in Apartment Buyer Agreement till 23.09.2016. The complainants took loan of Rs.50/- lacs from ICICI Bank on 07.08.2014, for paying instalments. Clause-4.2 of the agreement provides 47 months period plus six months grace period, from the date of allotment, for completing the construction and making it ready for occupation. Clause-4.3 provides for delayed compensation @Rs.5/- per sq.ft. per month on super area. The complainants, through emails inquired about stages of construction and delivery of possession time to time but no satisfactory reply was given. The complainants, vide email dated 05.05.2017, sought permission for site visit but no reply was given. The opposite parties issued demand of Rs.456364/- vide letter dated 30.05.2017, payable at the time of Possession Intimation. The complainants again through email dated 02.06.2017, requested for site visit before making payment. Then the opposite parties informed that request for site visit was forwarded to joint venture partner. The complainants deposited demanded amount on 21.06.2017. The opposite parties did not permit site visit nor handover possession, then the complainants gave email dated 04.09.2017, for possession. The opposite parties replied that they were carrying on internal recon of the flat for possession. The complainants gave emails dated 28.09.2017 for possession, then the opposite parties issued Possession Intimation letter dated 06.11.2017 and requiring the complainants to deposit stamp & registration charges and common area maintenance & electricity charges, which were deposited on 27.11.2017 and 24.01.2018. Licence No.102 of 2011 dated 07.12.2011 also expired on 06.12.2017. Licence No.102 dated 07.12.2011 was issued to the land owners under Haryana Development & Regulation of Urban Areas Act, 1975. Director, Town and Country Planning, Haryana vide Memo No.PF-51/2017/5/7/2007-2TCP dated 03.01.2017, issued instructions regarding transfer of licence. Opposite party-1 did not obtain permission of Director, Town and Country Planning, Haryana as such, it is not in position to execute sale deed of the flat in favour of the complainants. Therefore, in spite taking full payment, the opposite parties are avoiding delivery of possession and execution of sale deed. The opposite parties have illegally realized Rs.350000/- towards car parking space. This complaint was filed on 18.02.2018, alleging unfair trade practice.        

4.      The opposite party-1 has filed its written reply on 23.05.2018, in which, booking of the flat on 11.09.2012, allotment of flat on 04.02.2013, execution of Apartment Buyer’s Agreement on 26.04.2013 and deposits made by the complainants, have not been disputed. Opposite party-1 stated that M/s. Magic Info Solution Pvt. Ltd. and other land owners of the project land entered into a Development Agreement with M/s. Godrej Properties Limited for development of the group housing over the land and a General Power of Attorney dated 05.08.2011 in favour of M/s. Godrej Properties Limited, who assigned its right to its subsidiary company (opposite party-1) through an agreement and a deed of substitution dated 27.11.2011. The complainants did not implead all individual land owners in the complaint. Mohit Kumar Chellaramani (complainant-2) has already relinquished his right in favour of complainant-1 on 07.07.2017. On his Affidavit and Indemnity bond/undertaking, endorsement in favour of complainant-1 has already been made on 10.10.2017. He has been wrongly impleaded as complainant-2. The project “Godrej Summit” was being developed by opposite party-1 in collaboration with other partners. Apartment No.102, Tower F, which was allotted to the complainants fell in the share of opposite party-2 accordingly all the transactions were done by opposite party-2 with the complainants from the date of allotment in respect of said apartment. As such, the plea raised by the complainants on the basis of Memo No.PF-51/2017/5/7/2007-2TCP dated 03.01.2017, issuing instruction regarding transfer of licence, by Director, Town and Country Planning, Haryana, does not arise in the present case. The opposite parties have also obtained necessary approval from Director, Town and Country Planning, Haryana on 25.01.2018. Licence was also renewed till 06.12.2019. All the facts relating to title of the land, licence for development and terms and conditions for allotment, payment and transfer were disclosed to the complainants at the time of booking. After fully understanding they booked the flat. The opposite parties completed the construction and obtained “occupation certificate” on 07.04.2017. After completing other formalities, opposite party-2 issued offer of possession vide letter dated 30.05.2017. Thereafter, the opposite parties made repeated request with the complainants to complete the formalities and take possession but the complainants themselves avoided to take possession. The opposite parties have not committed any deficiency in service or unfair trade practice. The agreement contained an arbitration clause and the complainants be relegated to go for arbitration. The complainants are investors and complaint is not maintainable.  

5.      Opposite party-2 filed its written reply on 30.05.2018, in which, booking of the flat on 11.09.2012, allotment of flat on 04.02.2013, execution of Apartment Buyer’s Agreement on 26.04.2013 and deposits made by the complainants, have not been disputed.  Clause 4.2 of the Apartment Buyers Agreement provides 47 months from the date of issuance of allotment letter and grace period of 7 months for completing the constructing and making ready for occupation.  The opposite party completed the construction and applied for issue of occupation certificate which was issued on 07.04.2017. The complainants were intimated for taking possession on 30.05.2017.  47 months period expired on 03.01.2017 and six months grace period expired on 03.07.2017. The construction was completed well within time and occupation certificate was obtained on 07.04.2017. The intimation was given to the complainants on 30.05.2017. Thereafter, the possession letter was issued to him on 05.10.2017. It cannot be said that there was unreasonable delay in offering the possession.  The complainants avoided to take possession on one or other ground. They are not entitled for any relief in the complaint. The other plea as raised by opposite party-1, have also been raised.

6.      The complainants filed separate rejoinder replies of the written replies filed by opposite party-1 & 2, Affidavit of Evidence of Pumit Kumar Chellaramani. Opposite party-1 filed Affidavit of Evidence of Anindo Vyas and opposite party-2 filed Affidavit of Evidence of Brajesh Chandra Tripathi. By way of IA/8654/2022, opposite party-1 filed Supplementary cum-Amendment Agreement dated 15.10.2019 executed between the developers and land owners by which the flats in the project Godrej Summit were divided between opposite party-1 & 2. Opposite party-1 has also filed an additional evidence of Surabhi Kapur.  All the parties have filed their written submissions.

7.      We have considered the arguments of the counsel for the parties and examined the record. A perusal of Clause 4.2 of the Apartment Buyers’ Agreement dated 26.04.2013 shows that the period of 47 months from the date of issue of allotment letter was given for making the apartment ready for occupation and a grace period of six months for making it ready for possession and occupation. The allotment letter was issued on 04.02.2013. 47 months period was completed on 03.01.2017 and six months grace period was completed on 03.07.2017. The possession intimation letter was given to the complainants on 30.05.2017 and possession letter was given on 05.10.2017.  Therefore, it cannot be said that there was unreasonable delay in offer of possession and the complainants are entitled for refund. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442 has held that in the matter of civil construction work time cannot be made as essence of the contract.  .

8.      The counsel for the complainants relied upon Clause 4.3 of the Apartment Buyers’ Agreement which provides that the developer at the request of the buyers may refund total amount already received in respect of said apartments with simple interest @15% per annum. Clause-4.3 provides for delay compensation. In addition, it gives right to the developer to refund the money in case the buyer seeks refund on the ground of delay. The complainants never sought for refund of money before offer of possession. On issue of Possession Intimation letter dated 06.11.2017, the complainants deposited stamp & registration charges and common area maintenance & electricity charges, on 27.11.2017 and 24.01.2018. Therefore this clause is not applicable.

  9.    If at this stage the complainants wants to return of their money, then it amount to breach of contract and earnest money is liable to be forfeited. Under clause-2.6 of the agreement provides that 20% of the Basic Sale price will be earnest money. But 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”.

10.    The counsel for the complainants relied upon the judgment of this Commission in CC/3877/2017 Kiran Chawla Vs. Three C Shelters Pvt. Ltd. (decided on 29.09.2019), in which 10% interest has been awarded in case of refund. But in view of current market rate, Supreme Court, in Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, awarded interest @9% per annum in case of refund and held that it is just compensation amounts to restitutory and compensatory.

ORDER

          The complaint is partly allowed.  Opposite party-2 is directed to refund entire amount deposited by the complainants except stamp charges if it has been purchased with interest @9% per annum from the date of respective deposit till the date of refund after deducing 10% of the Basic Sale Price, within a period of two months from the date of this judgment to complainant-1. The opposite party-2 will be entitled to satisfy the loan of the bank first and then return the balance amount to the complainant. The complainants shall handover entire papers relating to the flat to the opposite parties.